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Abstract
This article focuses on the way in which disabled people who are deprived of their liberty are treated in places of detention. It argues that human rights law demands that disabled people should not be discriminated against while in detention and that the non-discrimination obligation includes a reasonable accommodation obligation. The nature of this obligation is explained, together with the heightened profile given to it in the context of places of detention by Article 14 of the United Nations Convention on the Rights of Persons with Disabilities. A number of cases decided by supranational bodies are used to demonstrate how failures to provide reasonable accommodations to disabled detainees may result in inhuman or degrading treatment, as well as in discrimination. The extent to which principles of disability equality and reasonable accommodation are incorporated into the guidance issued by three supranational systems for monitoring places of detention is also examined. It is suggested that, in all three instances, more could and should be done to highlight the importance of ensuring that places of detention develop systems for guaranteeing that reasonable accommodation is provided to disabled detainees and that this would play an important role in reducing the risk of exposing disabled people deprived of their liberty to inhuman, cruel or degrading treatment.
Acknowledgements
I am grateful to the participants at the Round Table Event in Strasbourg, November 2011 for thought-provoking comments and discussion; and to the Mental Disability Advocacy Centre for making that discussion possible. I am also grateful to my friend and colleague Dr Amrita Mukherjee for her comments and interest.
Notes
For references to European developments, see, for example, European Union Agency for Fundamental Rights, Choice and Control: The Right to Independent Living (Luxembourg: Publications Office of the EU, 2012); European Union Agency for Fundamental Rights, Involuntary Placement and Involuntary Treatment of Persons with Mental Health Problems (Luxembourg: Publications Office of the EU, 2012); T. Hammarberg, The Right of People with Disabilities to Live Independently and be Included in the Community: Issue Paper 2012, 3 (Strasbourg: Commissioner for Human Rights, 2012); G. Quinn and S. Doyle, Getting a Life – Living Independently and Being Included in the Community: A Legal Study of the Current Use and Future Potential of the European Structural Funds to Contribute to the Achievement of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities (Brussels: Office of the High Commissioner for Human Rights European Region, 2012); C. Parker and L. Clements, The European Union and the Right to Community Living: Structural Funds and the EU's Obligations under the Convention on the Rights of Persons with Disabilities (New York: Open Society Foundation, 2012); C. Parker, A Community for All: Implementing Article 19 (New York: Open Society Foundation, 2011); C. Parker, Forgotten Europeans – Forgotten Rights: The Human Rights of Persons Placed in Institutions (Brussels: Office of the High Commissioner for Human Rights European Region, 2011); C. Parker, with I. Bulic, Wasted Time, Wasted Money, Wasted Lives: A Wasted Opportunity? (London: ECCL, 2010); J. Pfeiffer et al. Report of the Ad Hoc Expert Group on the Transition from Institutional to Community-based Care (Brussels: European Commission, 2009); R. Townsley, with L. Ward, D. Abbott and V. Williams, The Implementation of Policies Supporting Independent Living for Disabled People in Europe: Synthesis Report (Academic Network of European Disability Experts, 2009) available at: http://www.disability-europe.net/content/aned/media/ANED-Task%205%20Independent%20Living%20Synthesis%20Report%; J. Mansell, M. Knapp, J. Beadle-Brown and J. Beacham, Deinstitutionalisation and Community Living – Outcomes and Costs: Report of a European Study (Canterbury: Tizard Centre, 2007); G. Freyhoff, C. Parker, N. Coué and N. Greig, eds, Included in Society: Results and Recommendations of the European Research Initiative on Community-Based Residential Alternatives for Disabled People (Brussels: Inclusion Europe, 2004).
As required by Article 19 of the UN Convention on the Rights of Persons with Disabilities.
Convention on the Rights of Persons with Disabilities, GA Res 61/106 (2007).
See, for example, Committee of Ministers of the Council of Europe, Disability Action Plan to Promote the Rights and Participation of People with Disabilities in Society for 2006–2015, Recommendation (2006) 5; and, in the context of the UK, the Equality Act 2010 replacing the Disability Discrimination Act 1995.
See, generally, A Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Oxford: Hart Publishing, 2008), chapter 1.
Equal Employment Opportunity Act 1972 (amending Civil Rights Act 1964, 42 USC 2000e).
29 USC s 701 et seq.
42 USC s 12101 ff.
AG/RES 1608, 7 JUNE 1999.
Disability Discrimination Act 1995 (now replaced by the Equality Act 2010).
Employment Equality Act 1998 and Equal Status Act 2000.
Disability Discrimination Act 1999.
Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.
See, further, G. Quinn, ‘Disability Discrimination Law in the European Union’, in Equality Law for an Enlarged Europe: Understanding the Article 13 Directives, ed. H. Meenan (Cambridge: Cambridge University Press, 2007), 232–277; L. Waddington and A. Hendriks, ‘The Expanding Concept of Employment and Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination’, International Journal of Comparative Labour Law and Industrial Relations 8 (2002): 403; K. Wells, ‘The Impact of the Framework Employment Directive on UK Disability Discrimination Law’, Industrial Law Journal 32 (2003): 253; R Whittle, ‘The Framework Directive for Equal Treatment in Employment and Occupation: An Analysis from a Disability Rights Perspective’, European Law Review 27 (2002): 303.
Analysed in depth in L. Waddington and A. Lawson, Disability Non-Discrimination Law in the European Union: A Thematic Report for the European Network of Legal Experts in the Non-Discrimination Field (Brussels: European Commission, 2009).
See note 4 above.
See, for example, Autisme-Europe v. France, Decision of the European Committee of Social Rights, Collective Complaint 13 (2003). See also G. Quinn, ‘The European Union and the Council of Europe on the Issue of Human Rights: Twins Separated at Birth?’, McGill Law Journal 46 (2001): 845; G Quinn, ‘The European Social Charter and EU Anti-Discrimination Law in the Field of Disability: Two Gravitational Fields with one Common Purpose’, in Social Rights in Europe, ed. G. de Burca and B. de Witte (Oxford: Oxford University Press, 2005), 279–304.
J. Lord and R. Brown, ‘The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities’, in Critical Perspectives on Human Rights and Disability Law, ed. M.H. Rioux, L. Basser and M. Jones (Leiden/ Boston, MA: Martinus Nijhoff/Brill Academic, 2011), 273.
See, in particular, Glor v. Switzerland, Application No. 13444/04, 30 April 2009.
Ibid, para 53; Kiss v. Hungary, Application No. 38832/06, 20 May 2010 para 44; Jasinskis v. Latvia, Application No. 45744/08, 21 December 2010, para 65; Stanev v. Bulgaria, Application No. 36760/06, 17 January 2012, para 244.
United Nations Committee on Economic, Social and Cultural Rights, General Comment 5: Persons with Disabilities, 1994.
Ibid, para 15.
This is termed the ‘procedural’ component of reasonable accommodation duties by S.J. Schwab and S.L. Willborn, ‘Reasonable Accommodation of Workplace Disabilities’, William and Mary Law Review 44 (2003): 1197.
See, for example, the International Covenant on the Elimination of all forms of Racial Discrimination, Article 1; and the Convention on the Elimination of all forms of Discrimination Against Women, Article 1. For general discussion, see O.M. Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality’, in The UN Convention on the Rights of Persons With Disabilities: European and Scandinavian Perspectives, ed. O.M. Arnardóttir and G. Quinn (Leiden: Martinus Nijhoff, 2009), especially 52–53.
See, for example, Committee on Economic, Social and Cultural Rights, General Comment 20, Non-Discrimination in Economic, Social and Cultural Rights, 2009; Committee on the Elimination of Discrimination Against Women, General Recommendation 28, ‘Core Obligations of States Parties under Article 2 of the Convention on the Elimination of all forms of Discrimination Against Women’, 2010; Committee on the Elimination of Racial Discrimination, General Recommendation 14, ‘Definition of Discrimination’, 1993.
See, for example, the facts of Campeanu v. Romania, no 47848/08 – a case currently before the ECtHR. In that case, staff at the psychiatric hospital to which Campeanu (who had intellectual disabilities and also AIDS) had been sent, refused to provide him with basic care for fear of being infected.
Committee on the Elimination of Discrimination Against Women, General Recommendation 28, ‘Core Obligations of States Parties under Article 2 of the Convention on the Elimination of all forms of Discrimination Against Women’, 2010, para 5.
Ibid, para 16.
See S. Fraser Butlin, ‘The UN Convention on the Rights of Persons with Disabilities: Does the Equality Act 2010 Measure up to UK International Commitments?’, Industrial Law Journal 40, no. 4 (2011): 428 for the argument (criticised by A. Lawson, ‘Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated’, Industrial Law Journal 40, no. 4 (2011): 359) that the CRPD's definition of discrimination prohibits the use of a justification defence for indirect discrimination.
For a thorough analysis of the concept of accessibility as used in the CRPD, see J.E. Lord, ‘Accessibility and Human Rights Fusion in the CRPD: Assessing the Scope and Content of the Accessibility Principle and Duty under the CRPD’ (paper delivered at the Committee on the Rights of Persons with Disabilities Day of General Discussion, 7 October 2010, http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGD7102010.aspx).
See, further, A. Lawson ‘Reasonable Accommodation and Accessibility Obligations: Towards a More Unified European Approach?’, European Anti-Discrimination Law Review 11 (2011): 11–21.
See the International Covenant on Civil and Political Rights, Article 26.
CRPD, Article 4(2).
CRPD, Article 3.
CRPD, Article 4(2).
M. Nowak, Interim report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/63/175, 28 July 2008, para 38.
Ireland v. UK, Application No. 5310/71 (1978) Series A no. 25 [162].
A. Lawson, ‘Disability, Degradation and Dignity: The Role of Article 3 of the European Convention on Human Rights’, Northern Ireland Legal Quarterly 56, no. 4 (2006): 462.
This point is also made in Lord and Brown, ‘The Role of Reasonable Accommodation’, 283–285.
Stanev v. Bulgaria, Application No. 36760/06, 17 January 2012.
Ibid, para 209.
Inter-American Commission for Human Rights, Precautionary Measures 2003, para 60, http://www.cidh.org/medidas/2003.eng.htm.
Price v. UK, Application No. 33394/96 (2001) 34 EHRR 1285, discussed in A. Laycock, ‘Price v. UK: The Importance of Human Rights Principles in Promoting the Rights of Disabled Prisoners in the United Kingdom’, in Critical Perspectives on Human Rights and Disability Law, ed. Rioux et al., 201–238.
Price v. UK, Ibid, para 30.
Ibid.
Communication No 616/1995, Views adopted by the Human Rights Committee on 28 July 1999 (CCPR/C/66/D/616/1995).
Application No. 45744/08, 21 December 2010.
Ibid, para 59.
Ibid, para 66.
On reasonable accommodation and psychosocial disabilities, see A. Lawson, ‘People with Psychosocial Impairments or Conditions, Reasonable Accommodation and the Convention on the Rights of Persons with Disabilities: Changing the World?’, Law in Context 26 (2008): 62.
(27229/95) (2001) ECHR 242, para 116. See also Renolde v. France (2009) (5608/05); Dybeku v. Albania (2007) (41153/06).
Victor Rosario Congo v. Ecuador, Case 11.427, Report No. 63/99, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev. at 475 (1998).
Ibid, para 58.
CAT/OP/PRY/1, para. 185.
J.E. Mendez, Interim report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/66/268, 5 August 2011, paras 78 and 86.
Ibid, paras 75, 76.
Mouisel v. France, Application No. 67263/01 [2002] ECHR 740.
Application No. 4672/02, § 56, 2 December 2004.
Article 16(3).
Committee Against Torture, General Comment No. 2, Implementation of Article 2 by States Parties, para. 4. See also 4th Annual Report of the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, May/June 2011, para 105.
It is around the need to tackle such barriers and their disabling effects – termed the ‘social model of disability’ – that the disability movement has formed. See, for further discussion of the ‘social model’ of disability and the debates to which it has given rise, R. Traustadóttir, ‘Disability Studies, the Social Model and Legal Developments’, in The UN Convention on the Rights of Persons with Disabilities, ed. Arnadóttir and Quinn, 3–17; C. Thomas, ‘How is Disability Understood? An Examination of Sociological Approaches’, Disability and Society 19 (2004): 569; M. Priestley, ‘Constructions and Creations: Idealism, Materialism and Disability Theory’, Disability and Society 13 (1998): 75; M. Oliver and C. Barnes, The New Politics of Disablement (Basingstoke: Macmillan, 2012); C. Barnes and G. Mercer, Disability (Malden: Polity Press, 2010).
See, for example, preamble para (e) and Article 1 of the CRPD.
See, in particular, CRPD, Articles 16 and 13. See also E. Flynn and A. Lawson, ‘Disability and Access to Justice in the European Union: Implications of the United Nations Convention on the Rights of Persons with Disabilities’, European Yearbook of Disability Law (2012 forthcoming).
CPT, Standards, CPT/Inf/E (2002) 1 – Rev 2010, 5.
Ibid.
CPT/Inf (93) 12, para 42.
CPT/Inf (93) 12, para 55.
Extract from the ninth General Report, CPT/Inf (99) 12, para 25.
CPT/Inf (98) 12, para 35.
Ibid.
CPT/Inf (98) 12, para 34.
Report on CPT Visit to Ireland 2011, para 121.
CPT/Inf (93) 12, para 70.
See note 56 and accompanying text above.
See, further, D MacKay, ‘The United Nations Convention on the Rights of Persons with Disabilities’, Syracuse Journal of International Law and Commerce 34 (2006–07): 323.
CPT/Inf (98) 12, para 28.
CPT/Inf (99) 12.
Resolution 1/08.
CPT, Standards, CPT/Inf/E (2002) 1 – Rev 2010, p 5.