Purpose and Scope of the Convention (CRPD) Contents and Relevance of Art. 12 CRPD

| Equal recognition before the law and legal capacity – implications and consequences of Art. 12 CRPD

| Ulrich Hellmann, Lebenshilfe, Germany

Equal recognition before the law and legal capacity –

implications and consequences of Art. 12 CRPD

Nicosia, 12th March 2010

Ulrich Hellmann, Lebenshilfe Germany

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1. Purpose and Scope of the Convention (CRPD)

2. Contents and Relevance of Art. 12 CRPD• Equal recognition before the law

• The concept of `legal capacity‘

• Supported decision-making vs. Substituted decision-

making

• Safeguards and protection

3. Examples of existing legal systems

4. Conclusions + options for change

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The CRPD• is a legally binding international human rights treaty

• does not create or recognize new rights for persons with disabilities, but describes and clarifies obligations and legal duties of States to respect and ensure existing human rights with regard to the life situation of persons with disabilities

• once a country has ratified the CRPD, the obligations established by the convention must be reflected in its national legal framework and related policies

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The structure of the CRPD– Preamble – not legally binding, but important principles for

the interpretation of the articles of the CRPD

– General Part (Articles 1 to 7) – goals and principles, definitions

– Special Part (Articles 8 to 30) – specific rights and measures

– Procedural Regulations (Articles 31 to 50) –Rules for the implementation of the CRPD

The Optional Protocol:– Additional regulations on individual or group complaints and an

inquiry procedure

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Purpose and scope of the CRPD

• General purpose:

Art.1 para. 1: The purpose of the present Convention is

to promote, protect and ensure the full and equal

enjoyment of all human rights and fundamental

freedoms by all persons with disabilities, and to promote

respect for their inherent dignity

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• Defining disability:

The CRPD describes disability in preamble e) as

follows:

Recognizing that disability is an evolving concept and

that disability results from the interaction between

persons with impairments and attitudinal and

environmental barriers that hinders their full and effective

participation in society on an equal basis with others

• All persons with long-term disabilities are covered, Art. 1

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General Principles - Art. 3 – the values of the CRPD:

• Human dignity,

• Individual autonomy

• Respect for difference

• Non-discrimination, full and effective participation and inclusion in society (also see Art. 5 and 8),

• Equality of opportunity,

• Equality between men and women, respect for the evolving capacities and the rights of children with disabilities (also see Art. 6 and 7)

• Accessibility (also see Art. 9)

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Article 12

• Art. 12 was one of the most debated regulations during the negociations for the CRPD

• Art. 12 is the reaction of the UN on the inability of many States to prevent persons with disabilities from social exclusion and abuse

• In many countries throughout the world legal systems of incapacitation and full guardianship for decades were used not to protect, but to exclude persons with disabilities from normal life by depriving them from all personal and procedural rights

• Futhermore, traditional guardianship systems were often used to incarcerate persons with disabilities in big institutions against their will

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Article 12 is of fundamental importance

Art. 12 is essential for the enjoyment of many other rights which are guaranteed by the Convention, for example

– Art. 13 - access to justice

– Art. 14 – liberty and security of the person

– Art. 19 – living indepently and being included in the community

– Art. 25 – acces to appropiate health service on the basis of free and informed consent

– Art. 27 – access to work and employment

– Art. 29 – participation in political and public life, including the right to vote and be elected

For all these rights the right to self-determination is a precondition!

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• During the negociations for the CRPD at New York, there were

controversial discussions on the issue of „legal capacity“ and

„decicion-making“

• The Internatonal Disability Alliance successfully showed that

traditional models of incapacitation and substituted decision-

making did not benefit people with disabilities in most countries

• It was finally considered as a „wrong signal“ to acknowledge

guardianship and only put safety-mechanisms in the CRPD

• As a result, Art. 12 was designed as a paradigm shift with regard

to the legal status of persons with disability

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Article 12 - Equal recognition before the law

(1) States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

similar to Art. 16 of the International Covenant of Civil and Political Rights (ICCPR):

„Everyone shall have the right to recognition everywhere as a person before the law.“

Pursuant to this provision, the individual is recognised as a potential bearer of legal rights and obligations. It gives to the human being status and capacity in the legal order. Without it, a person would not be truly free, for it would be subject to injustice and injury without legal remedy. The term „reaffirm“ shows that ths is not a new human right!

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Article 12 – the capacity to act:(2)‘States Parties shall recognize that persons with disabilities

enjoy legal capacity on an equal basis with others in all aspects of life‘.Similar to Article 15 (2) of the Convention for the Elimination of Discimination aganist

Women (CEDAW): „States Paries shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity………“

Legal capacity in the sense of this provision is defined as the capacity and power to exercise rights and undertake obligations by way of one‘s own conduct (‚dynamic element‘). This concept logically presupposes the capability to be a potential holder of rights and obligations (‘static

element’, Art. 12 par. 1).

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Article 12 – support to exercise legal capacity:

(3)‘States Parties shall take appropriate measures to provide access

by persons with disabilities to the support they may require in

exercising their legal capacity‘.

Whereas the capacity to be a person before the law belongs to all human beings

from birth to death, the capacity to act may be subject to additional

requirements, for example:

• Adult age (18)

• the capacity to understand the meaning of one‘s actions and their consequences

This provision provides for the support a person with disability might need to

exercise its legal capacity. It creates a new obligation for States Parties to fulfill the

enjoyment of legal capacity. There is no mention of ‚substituted decision making‘

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Article 12 – protection and safeguards:

4. ‚States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests‘.

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Article 12 (4) – protection and safeguards:

• The provision of Art. 12 (4) clearly refers to support measures to

exercise legal capacity

• „all measures“ is interpreted in a way that the safeguards of Art

12 (4) also apply to traditional guardianship measures

• States Parties take the view that legal structures for substituted

decision-making might still be necessary and are not prohibited

by Art. 12

• Jim McLay, moderator at the 2nd States Parties Conference: ‘Art.

12 from the legal point of view is the biggest challenge of the CRPD, as no

Member State of the UN has already been able to establish such support

systems‘

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Declarations and reservations with regard to Art. 12:• Australia: understanding that the CRPD allows fully supported or

substituted decision-making;

• Egypt: interpreting legal capacity as the capacity to acquire rights and assume legal responsibility, but not the capacity to perform rights;

• Mexico: in case of conflict between Art. 12 (2) and national law the provision which provides greatest legal protection shall prevail;

• Syria: interpretation of Art. 12 (2) in the sense of the Arab Group, letter of 5th December 2006;

• UK: Exercise of some rights related to social security payments are not yet subject of regular review (Art. 12, 4);

• Canada: Plans for an interpretive declaration about the right to apply substitute decision arrangements where appropriate.

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3. Examples of existing legal systems:

• Austria 1984

• Germany 1992

• Italy 2004

• Hungary 2009

• British Columbia, Canada 1996

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Law Reform in Austria:• 1984: Replacement of full incapacitation and plenary

guardianship by the new measure of ‚Sachwalterschaft‘– A single, tailor-made type of guardianship according to the support-needs of

the disabled person for financial and/or personal affairs, court-authorization is required for ‚important‘ decisions taken by the ‚Sachwalter‘

– Guardian (‚Sachwalter‘) is entitled to take decisions on behalf of the person

– Person under guardianship is legally incompetent concerning matters covered by guardianship

– 2006/2007 law reforms to strenghten alternatives to guardianship: recognition of substitute-decision-making by family members, power of attorney, living wills (advanced directives)

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Law Reform in Germany:

• 1992: Replacement of full and partial incapacitation and plenary guardianship by the new measure of ‚Betreuung‘

• a single, tailor-made type of guardianship according to the support-needs of the disabled person

• the guardian (‚Betreuer‘) is entitled to take decisions on behalf of the person

• court authorization is required for ‚important‘ decisions taken by the ‚Betreuer‘

• person under ‚Betreuung‘ is not declared legally incompetent according to matters covered by guardianship, but remains competent for personal decisions whenever possible; Guardian has to obey the wishes of the disabled person

• 2005/2009 law reforms to strenghten alternatives to guardianship: recognition and promotion of advanced directives, living will

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Law Reform in Italy: • 2004: introduction of a new measure of legal representation and

support (‚amministrazione di sostegno‘) in order to promote self

determination and autonomy

• New measure in addition to traditional full and partial incapacitation and

guardianship

• The supporter is entitled by court to support and/or represent the disabled

person only in specific matters where needed

• The disabled person is not loosing legal capacity under this measure

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Law Reform in Hungary:

2009: Reform of guardianship in the Civil Code of Hungary

• Abolition of plenary guardianship

• Introduction of a measure of supported-decision making, based on an

agreement between the disabled person and a support person

• Supported-decision making does not limit legal capacity

• Partial guardianship with limitation of legal capacity as a matter of last

resort, including a ‚joint-decision-making mechanism‘

• Law reform is regarded as great step forward by hungarian NGO

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Province of British Columbia, Canada:

• 1996: Representation Agreement Act• Incorporation of supported decision-making into law

• An individual with disabilities can enter a ‚representation agreement‘ with a support network giving the network the authority to asist him/her in making decisions and represent him/her in certain matters

• Persons with significant disabilities can enter a RA simply by demonstrating „trust“ in the designated supporters, without having to prove ‚legal capacity‘

• A community-based ‚Representation Agreement Resource Center‘ assits in developing and sustaining support networks.

• The RARC provides a registry in which agreements can be posted

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General obligations of States Parties - Art. 4 CRPD:

• undertake to ensure and promote the full realization of all human

rights and fundamental freedoms for all persons with disabilities

without discrimination of any kind on the basis of disability, Art. 4 para.

1;

• with regard to economic, social and cultural rights, each State Party

undertakes to take measures to the maximum of ist available resources

and…… with a view to achieving progressively the full realization of

these rights, without prejudice to those obligations contained in the

present Convention that are immediately applicable according to

international law, Art. 4 para. 2;

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Antidiscrimination and reasonable accommodation – Art. 5:• All persons are entitled without any discrimination to the equal protection

and equal benefit of the law

• In order to promote equality and eliminate discrimination, States Parties

shall take all appropriate steps to ensure that reasonable accommodation

is provided

• The right to equality before the law, legal capacity and protection from

discrimination are human rights immediately applicable. Supported

decision-making systems can be regarded as a means of ‚reasonable

accommodation‘ to promote the capacity to act

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Inclusion Europe and the European Disability Forum have published policy-papers with regard to an adequate ‚Understanding and implementing Article 12 CRPD‘ , in order to make the paradigm shift set up by Art. 12 a reality in law

Key elements are:

– Promotion of self-advocacy to advance legal capacity to act

– Replacement of traditional guardianship by a system of supported decision-making

– Implementation of supported decision-making, including mechanisms for selection and registration of support persons

– Recognizing all forms of communication of disabled persons

– Implementation of safeguards for both supported persons and suppport persons to solve conflicts and prevent abuse

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Conclusions:• Art. 12 is essential for persons with intellectual disabilities to

be able to enjoy the rights of the CRPD

• It is part of States Parties obligation to respect, protect and

fulfill these rights, therefore replacement of plenary

guardianship by flexible alternatives is a necessary step

• Making the paradigm shift from traditional guardianship to

supported decision-making systems a reality will not be an

immediate change, but a long-term process

• Persons with intellectual disability should strongly insist on

full implementation of the principles set up by Art. 12 in the

near future

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Thank you for listening

and

for your participation!

Documents

Purpose and Scope of the Convention (CRPD) Contents and Relevance of Art. 12 CRPD