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Accessibility 2014, para. 2
- Paragraph text
- Article 25 (c) of the International Covenant on Civil and Political Rights enshrines the right of every citizen to have access, on general terms of equality, to public service in his or her country. The provisions of this article could serve as a basis to incorporate the right of access into the core human rights treaties.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2014
Paragraph
Accessibility 2014, para. 11
- Paragraph text
- The Committee on the Rights of Persons with Disabilities has also addressed the issue of accessibility in its jurisprudence. In the case of Nyusti and Takács v. Hungary (communication No. 1/2010, Views adopted on 16 April 2013), the Committee was of the view that all services open or provided to the public must be accessible in accordance with the provisions of article 9 of the Convention on the Rights of Persons with Disabilities. The State party was called upon to ensure that blind persons had access to automatic teller machines (ATMs). The Committee recommended, inter alia, that the State party establish "minimum standards for the accessibility of banking services provided by private financial institutions for persons with visual and other types of impairments; … create a legislative framework with concrete, enforceable and time-bound benchmarks for monitoring and assessing the gradual modification and adjustment by private financial institutions of previously inaccessible banking services provided by them into accessible ones; … and ensure that all newly procured ATMs and other banking services are fully accessible for persons with disabilities" (para. 10.2 (a)).
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Accessibility 2014, para. 12
- Paragraph text
- Given these precedents and the fact that accessibility is indeed a vital precondition for persons with disabilities to participate fully and equally in society and enjoy effectively all their human rights and fundamental freedoms, the Committee finds it necessary to adopt a general comment on article 9 of the Convention on accessibility, in accordance with its rules of procedure and the established practice of the human rights treaty bodies.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Accessibility 2014, para. 14
- Paragraph text
- Article 9 of the Convention clearly enshrines accessibility as the precondition for persons with disabilities to live independently, participate fully and equally in society, and have unrestricted enjoyment of all their human rights and fundamental freedoms on an equal basis with others. Article 9 has roots in existing human rights treaties, such as article 25 (c) of the International Covenant on Civil and Political Rights on the right to equal access to public service, and article 5 (f) of the International Convention on the Elimination of All Forms of Racial Discrimination on the right of access to any place or service intended for public use. When those two core human rights treaties were adopted, the Internet, which has changed the world dramatically, did not exist. The Convention on the Rights of Persons with Disabilities is the first human rights treaty of the 21st century to address access to ICTs; and it does not create new rights in that regard for persons with disabilities. Furthermore, the notion of equality in international law has also changed over the past decades, with the conceptual shift from formal equality to substantive equality having an impact on the duties of States parties. States' obligation to provide accessibility is an essential part of the new duty to respect, protect and fulfil equality rights. Accessibility should therefore be considered in the context of the right to access from the specific perspective of disability. The right to access for persons with disabilities is ensured through strict implementation of accessibility standards. Barriers to access to existing objects, facilities, goods and services aimed at or open to the public shall be removed gradually in a systematic and, more importantly, continuously monitored manner, with the aim of achieving full accessibility.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Accessibility 2014, para. 24
- Paragraph text
- A clear distinction should be drawn between the obligation to ensure access to all newly designed, built or produced objects, infrastructure, goods, products and services and the obligation to remove barriers and ensure access to the existing physical environment and existing transportation, information and communication, and services open to the general public. Another of the States parties' general obligations is to "undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines" (art. 4, para. 1 (f)). All new objects, infrastructure, facilities, goods, products and services have to be designed in a way that makes them fully accessible for persons with disabilities, in accordance with the principles of universal design. States parties are obliged to ensure that persons with disabilities have access to the existing physical environment, transportation, information and communication and services open to the general public. However, as this obligation is to be implemented gradually, States parties should establish definite time frames and allocate adequate resources for the removal of existing barriers. Furthermore, States parties should clearly prescribe the duties of the different authorities (including regional and local authorities) and entities (including private entities) that should be carried out in order to ensure accessibility. States parties should also prescribe effective monitoring mechanisms to ensure accessibility and monitor sanctions against anyone who fails to implement accessibility standards.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Accessibility 2014, para. 28
- Paragraph text
- States parties are obliged to adopt, promulgate and monitor national accessibility standards. If no relevant legislation is in place, adopting a suitable legal framework is the first step. States parties should undertake a comprehensive review of the laws on accessibility in order to identify, monitor and address gaps in legislation and implementation. Disability laws often fail to include ICT in their definition of accessibility, and disability rights laws concerned with non-discriminatory access in areas such as procurement, employment and education often fail to include access to ICT and the many goods and services central to modern society that are offered through ICT. It is important that the review and adoption of these laws and regulations are carried out in close consultation with persons with disabilities and their representative organizations (art. 4, para. 3), as well as all other relevant stakeholders, including members of the academic community and expert associations of architects, urban planners, engineers and designers. Legislation should incorporate and be based on the principle of universal design, as required by the Convention (art. 4, para. 1 (f)). It should provide for the mandatory application of accessibility standards and for sanctions, including fines, for those who fail to apply them.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Education
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Accessibility 2014, para. 30
- Paragraph text
- It is necessary to establish minimum standards for the accessibility of different services provided by public and private enterprises for persons with different types of impairments. Reference tools such as the ITU-T recommendation Telecommunications Accessibility Checklist for standardization activities (2006) and the Telecommunications accessibility guidelines for older persons and persons with disabilities (ITU-T recommendation F.790) should be mainstreamed whenever a new ICT-related standard is developed. That would allow the generalization of universal design in the development of standards. States parties should establish a legislative framework with specific, enforceable, time-bound benchmarks for monitoring and assessing the gradual modification and adjustment by private entities of their previously inaccessible services into accessible ones. States parties should also ensure that all newly procured goods and services are fully accessible for persons with disabilities. Minimum standards must be developed in close consultation with persons with disabilities and their representative organizations, in accordance with article 4, paragraph 3, of the Convention. The standards can also be developed in collaboration with other States parties and international organizations and agencies through international cooperation, in accordance with article 32 of the Convention. States parties are encouraged to join ITU study groups in the radiocommunication, standardization and development sectors of the Union, which actively work at mainstreaming accessibility in the development of international telecommunications and ICT standards and at raising industry's and governments' awareness of the need to increase access to ICT for persons with disabilities. Such cooperation can be useful in developing and promoting international standards that contribute to the interoperability of goods and services. In the field of communication-related services, States parties must ensure at least a minimum quality of services, especially for the relatively new types of services, such as personal assistance, sign language interpretation and tactile signing, aiming at their standardization.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Older persons
- Persons with disabilities
- Year
- 2014
Paragraph
Accessibility 2014, para. 48
- Paragraph text
- The monitoring of accessibility is a crucial aspect of the national and international monitoring of the implementation of the Convention. Article 33 of the Convention requires States parties to designate focal points within their governments for matters relating to the implementation of the Convention, as well as to establish national frameworks to monitor implementation which include one or more independent mechanisms. Civil society should also be involved and should participate fully in the monitoring process. It is crucial that the bodies established further to article 33 are duly consulted when measures for the proper implementation of article 9 are considered. Those bodies should be provided with meaningful opportunities to, inter alia, take part in the drafting of national accessibility standards, comment on existing and draft legislation, submit proposals for draft legislation and policy regulation, and participate fully in awareness-raising and educational campaigns. The processes of national and international monitoring of the implementation of the Convention should be performed in an accessible manner that promotes and ensures the effective participation of persons with disabilities and their representative organizations. Article 49 of the Convention requires that the text of the Convention be made available in accessible formats. This is an innovation in an international human rights treaty and the Convention on the Rights of Persons with Disabilities should be seen as setting a precedent in that respect for all future treaties.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Education
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 1
- Paragraph text
- Equality before the law is a basic general principle of human rights protection and is indispensable for the exercise of other human rights. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights specifically guarantee the right to equality before the law. Article 12 of the Convention on the Rights of Persons with Disabilities further describes the content of this civil right and focuses on the areas in which people with disabilities have traditionally been denied the right. Article 12 does not set out additional rights for people with disabilities; it simply describes the specific elements that States parties are required to take into account to ensure the right to equality before the law for people with disabilities, on an equal basis with others.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 2
- Paragraph text
- Given the importance of this article, the Committee facilitated interactive forums for discussions on legal capacity. From the very useful exchange on the provisions of article 12 by experts, States parties, disabled persons' organizations, non-governmental organizations, treaty monitoring bodies, national human rights institutions and United Nations agencies, the Committee found it imperative to provide further guidance in a general comment.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 3
- Paragraph text
- On the basis of the initial reports of various States parties that it has reviewed so far, the Committee observes that there is a general misunderstanding of the exact scope of the obligations of States parties under article 12 of the Convention. Indeed, there has been a general failure to understand that the human rights-based model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making. The aim of the present general comment is to explore the general obligations deriving from the various components of article 12.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 4
- Paragraph text
- The present general comment reflects an interpretation of article 12 which is premised on the general principles of the Convention, as outlined in article 3, namely, respect for the inherent dignity, individual autonomy - including the freedom to make one's own choices -, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women; and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Men
- Persons with disabilities
- Women
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 5
- Paragraph text
- The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of Persons with Disabilities each specify that the right to equal recognition before the law is operative "everywhere". In other words, there are no permissible circumstances under international human rights law in which a person may be deprived of the right to recognition as a person before the law, or in which this right may be limited. This is reinforced by article 4, paragraph 2, of the International Covenant on Civil and Political Rights, which allows no derogation from this right, even in times of public emergency. Although an equivalent prohibition on derogation from the right to equal recognition before the law is not specified in the Convention on the Rights of Persons with Disabilities, the provision in the International Covenant covers such protection by virtue of article 4, paragraph 4, of the Convention, which establishes that the provisions of the Convention on the Rights of Persons with Disabilities do not derogate from existing international law.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 6
- Paragraph text
- The right to equality before the law is also reflected in other core international and regional human rights treaties. Article 15 of the Convention on the Elimination of All Forms of Discrimination against Women guarantees women's equality before the law and requires the recognition of women's legal capacity on an equal basis with men, including with regard to concluding contracts, administering property and exercising their rights in the justice system. Article 3 of the African Charter on Human and Peoples' Rights provides for the right of every person to be equal before the law and to enjoy equal protection of the law. Article 3 of the American Convention on Human Rights enshrines the right to juridical personality and the right of every person to recognition as a person before the law.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 7
- Paragraph text
- States parties must holistically examine all areas of law to ensure that the right of persons with disabilities to legal capacity is not restricted on an unequal basis with others. Historically, persons with disabilities have been denied their right to legal capacity in many areas in a discriminatory manner under substitute decision-making regimes such as guardianship, conservatorship and mental health laws that permit forced treatment. These practices must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 8
- Paragraph text
- Article 12 of the Convention affirms that all persons with disabilities have full legal capacity. Legal capacity has been prejudicially denied to many groups throughout history, including women (particularly upon marriage) and ethnic minorities. However, persons with disabilities remain the group whose legal capacity is most commonly denied in legal systems worldwide. The right to equal recognition before the law implies that legal capacity is a universal attribute inherent in all persons by virtue of their humanity and must be upheld for persons with disabilities on an equal basis with others. Legal capacity is indispensable for the exercise of civil, political, economic, social and cultural rights. It acquires a special significance for persons with disabilities when they have to make fundamental decisions regarding their health, education and work. The denial of legal capacity to persons with disabilities has, in many cases, led to their being deprived of many fundamental rights, including the right to vote, the right to marry and found a family, reproductive rights, parental rights, the right to give consent for intimate relationships and medical treatment, and the right to liberty.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Women
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 10
- Paragraph text
- This general comment focuses primarily on the normative content of article 12 and the State obligations that emerge therefrom. The Committee will continue to carry out work in this area so as to provide further in-depth guidance on the rights and obligations deriving from article 12 in future concluding observations, general comments and other documents.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 11
- Paragraph text
- Article 12, paragraph 1, reaffirms the right of persons with disabilities to be recognized as persons before the law. This guarantees that every human being is respected as a person possessing legal personality, which is a prerequisite for the recognition of a person's legal capacity.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 12
- Paragraph text
- Article 12, paragraph 2, recognizes that persons with disabilities enjoy legal capacity on an equal basis with others in all areas of life. Legal capacity includes the capacity to be both a holder of rights and an actor under the law. Legal capacity to be a holder of rights entitles a person to full protection of his or her rights by the legal system. Legal capacity to act under the law recognizes that person as an agent with the power to engage in transactions and create, modify or end legal relationships. The right to recognition as a legal agent is provided for in article 12, paragraph 5, of the Convention, which outlines the duty of States parties to "take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and … ensure that persons with disabilities are not arbitrarily deprived of their property".
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 13
- Paragraph text
- Legal capacity and mental capacity are distinct concepts. Legal capacity is the ability to hold rights and duties (legal standing) and to exercise those rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors. Legal instruments such as the Universal Declaration of Human Rights (art. 6), the International Covenant on Civil and Political Rights (art. 16) and the Convention on the Elimination of All Forms of Discrimination Against Women (art. 15) do not specify the distinction between mental and legal capacity. Article 12 of the Convention on the Rights of Persons with Disabilities, however, makes it clear that "unsoundedness of mind" and other discriminatory labels are not legitimate reasons for the denial of legal capacity (both legal standing and legal agency). Under article 12 of the Convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Environment
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Women
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 14
- Paragraph text
- Legal capacity is an inherent right accorded to all people, including persons with disabilities. As noted above, it consists of two strands. The first is legal standing to hold rights and to be recognized as a legal person before the law. This may include, for example, having a birth certificate, seeking medical assistance, registering to be on the electoral role or applying for a passport. The second is legal agency to act on those rights and to have those actions recognized by the law. It is this component that is frequently denied or diminished for persons with disabilities. For example, laws may allow persons with disabilities to own property, but may not always respect the actions taken by them in terms of buying and selling property. Legal capacity means that all people, including persons with disabilities, have legal standing and legal agency simply by virtue of being human. Therefore, both strands of legal capacity must be recognized for the right to legal capacity to be fulfilled; they cannot be separated. The concept of mental capacity is highly controversial in and of itself. Mental capacity is not, as is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 16
- Paragraph text
- Article 12, paragraph 3, recognizes that States parties have an obligation to provide persons with disabilities with access to support in the exercise of their legal capacity. States parties must refrain from denying persons with disabilities their legal capacity and must, rather, provide persons with disabilities access to the support necessary to enable them to make decisions that have legal effect.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 17
- Paragraph text
- Support in the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities and should never amount to substitute decision-making. Article 12, paragraph 3, does not specify what form the support should take. "Support" is a broad term that encompasses both informal and formal support arrangements, of varying types and intensity. For example, persons with disabilities may choose one or more trusted support persons to assist them in exercising their legal capacity for certain types of decisions, or may call on other forms of support, such as peer support, advocacy (including self-advocacy support), or assistance with communication. Support to persons with disabilities in the exercise of their legal capacity might include measures relating to universal design and accessibility - for example, requiring private and public actors, such as banks and financial institutions, to provide information in an understandable format or to provide professional sign language interpretation - in order to enable persons with disabilities to perform the legal acts required to open a bank account, conclude contracts or conduct other social transactions. Support can also constitute the development and recognition of diverse, non-conventional methods of communication, especially for those who use non-verbal forms of communication to express their will and preferences. For many persons with disabilities, the ability to plan in advance is an important form of support, whereby they can state their will and preferences which should be followed at a time when they may not be in a position to communicate their wishes to others. All persons with disabilities have the right to engage in advance planning and should be given the opportunity to do so on an equal basis with others. States parties can provide various forms of advance planning mechanisms to accommodate various preferences, but all the options should be non-discriminatory. Support should be provided to a person, where desired, to complete an advance planning process. The point at which an advance directive enters into force (and ceases to have effect) should be decided by the person and included in the text of the directive; it should not be based on an assessment that the person lacks mental capacity.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 18
- Paragraph text
- The type and intensity of support to be provided will vary significantly from one person to another owing to the diversity of persons with disabilities. This is in accordance with article 3 (d), which sets out "respect for difference and acceptance of persons with disabilities as part of human diversity and humanity" as a general principle of the Convention. At all times, including in crisis situations, the individual autonomy and capacity of persons with disabilities to make decisions must be respected.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 19
- Paragraph text
- Some persons with disabilities only seek recognition of their right to legal capacity on an equal basis with others, as provided for in article 12, paragraph 2, of the Convention, and may not wish to exercise their right to support, as provided for in article 12, paragraph 3.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 20
- Paragraph text
- Article 12, paragraph 4, outlines the safeguards that must be present in a system of support in the exercise of legal capacity. Article 12, paragraph 4, must be read in conjunction with the rest of article 12 and the whole Convention. It requires States parties to create appropriate and effective safeguards for the exercise of legal capacity. The primary purpose of these safeguards must be to ensure the respect of the person's rights, will and preferences. In order to accomplish this, the safeguards must provide protection from abuse on an equal basis with others.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 21
- Paragraph text
- Where, after significant efforts have been made, it is not practicable to determine the will and preferences of an individual, the "best interpretation of will and preferences" must replace the "best interests" determinations. This respects the rights, will and preferences of the individual, in accordance with article 12, paragraph 4. The "best interests" principle is not a safeguard which complies with article 12 in relation to adults. The "will and preferences" paradigm must replace the "best interests" paradigm to ensure that persons with disabilities enjoy the right to legal capacity on an equal basis with others.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 22
- Paragraph text
- All people risk being subject to "undue influence", yet this may be exacerbated for those who rely on the support of others to make decisions. Undue influence is characterized as occurring, where the quality of the interaction between the support person and the person being supported includes signs of fear, aggression, threat, deception or manipulation. Safeguards for the exercise of legal capacity must include protection against undue influence; however, the protection must respect the rights, will and preferences of the person, including the right to take risks and make mistakes.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 23
- Paragraph text
- Article 12, paragraph 5, requires States parties to take measures, including legislative, administrative, judicial and other practical measures, to ensure the rights of persons with disabilities with respect to financial and economic affairs, on an equal basis with others. Access to finance and property has traditionally been denied to persons with disabilities based on the medical model of disability. That approach of denying persons with disabilities legal capacity for financial matters must be replaced with support to exercise legal capacity, in accordance with article 12, paragraph 3. In the same way as gender may not be used as the basis for discrimination in the areas of finance and property, neither may disability.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Equal recognition before the law 2014, para. 24
- Paragraph text
- States parties have an obligation to respect, protect and fulfil the right of all persons with disabilities to equal recognition before the law. In this regard, States parties should refrain from any action that deprives persons with disabilities of the right to equal recognition before the law. States parties should take action to prevent non-State actors and private persons from interfering with the ability of persons with disabilities to realize and enjoy their human rights, including the right to legal capacity. One of the aims of support in the exercise of legal capacity is to build the confidence and skills of persons with disabilities so that they can exercise their legal capacity with less support in the future, if they so wish. States parties have an obligation to provide training for persons receiving support so that they can decide when less support is needed or when they no longer require support in the exercise of their legal capacity.
- Body
- Committee on the Rights of Persons with Disabilities
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph