Disability as a human rights issue in the complaints procedures under the first Optional Protocol to the ICCPR

6. The Committee is gravely concerned at reports that new-born handicapped infants have had their lives ended by medical personnel.

The State particularly should scrupulously investigate any such allegations of violations of the right to life (article 6 of the Covenant), which fall outside the law on euthanasia. The State particularly should further inform the Committee on the number of such cases and on the results of court proceedings arising out of them⁸⁷.

The HRC thus adopted a different and much more critical standpoint on the issue than the Council of Europe.

4.4 Disability as a human rights issue in the complaints procedures

The individual complaints procedure under the first Optional Protocol to the Covenant is not widely known and cases are distributed very unevenly in geographical terms.

During the first 15 years, only 468 complaints were received from a total of 36 States parties.⁸⁹ More recently, the number of complaints has grown dramatically but their geographical distribution remains uneven.⁹⁰

For the purposes of this study, 344 HRC documents dealing with both the admissibility and the merits of complaints were examined. Of these 344 cases, 8 communications, or 2 per cent, dealt with disability issues. The complaints concerned issues such as employment discrimination,⁹¹ discrimination relating to compensation of war veterans,⁹² discrimination relating to welfare benefits⁹³ and torture or inhuman and degrading treatment.⁹⁴ All but two of these cases were declared inadmissible.

In one of the disability complaints deemed admissible – Hamilton v. Jamaica (1999), the HRC adopted an interesting and robust view on the application of article 10 of the Covenant (treatment of detained persons with humanity) to disabled prisoners.⁹⁵ The case essentially involved the treatment and conditions of confinement of a disabled prisoner on death row. He was paralysed in both legs and experienced extreme difficulty in slopping out his cell and climbing onto his bed. It was argued before the HRC that his rights under articles 7 and 10 of the Covenant had been violated because the prison authorities had failed to take his disability into account and make proper arrangements for him. In essence, he argued that the absence of “reasonable accommodation” of his condition violated the ICCPR. The HRC agreed and stated that:

8.2…the conditions described…are such as to violate the author's right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore contrary to article 10, paragraph 1.

...

9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 10, paragraph 1, 9, paragraph 3, and 14, paragraph 3 (c), of the Covenant.

89 Torkel Opsahl, “The Human Rights Committee”, The United Nations and Human Rights, Philip Alston (ed.) (New York: Oxford University Press 1992 ), p. 421.

90 Bayefsky, The United Nations Human Rights Treaty System, p. 27.

91 Nicolov v. Bulgaria, communication No 824/1998, decision adopted by the Committee on 13 April 2000 (CCPR/C/68/D/824/1998); Cziklin v.Canada, communication No 741/1997, decision adopted by the Committee on 5 August 1999 (CCPR/C/66/D/741/1997).

92 Drake et al. v. New Zealand, communication No. 601/1994, decision adopted by the Committee on 29 April 1997 (CCPR/C/59/D/601/1994); Atkinsonet al. v. Canada, communication No 573/1994, decision adopted by the Committee on 9 November 1995 (CCPR/C/55/D/573/1994).

93 R.E.d.B. v. Netherlands, communication No 548/1993, decision adopted by the Committee on 5 November 1993 (CCPR/C/49/D/548/1993).

94 Hamilton v. Jamaica, communication No. 616/ 1995, Views adopted by the Committee on 28 July 1999 (CCPR/C/66/D/616/1995); Hart v. Australia, communication No 947/2000, decision adopted by the Committee on 27 October 2000 (CCPR/C/70/D/947/2000); Kehler v. Germany, communication No.

834/ 1998, decision adopted by the Committee on 2 April 2001 (CCPR/C/71/D/834/1998).

95 Hamilton v. Jamaica.

10. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide Mr. Hamilton with an effective remedy, entailing compensation and placement in conditions that take full account of his disability. The State party is under an obligation to ensure that similar violations do not occur in the future.

The Views of the HRC in this case have important implications for the application of the Covenant to disabled persons. First, the case illustrates that disabled persons’

human rights are not only affected in the context of social welfare and health. Like non-disabled citizens, disabled persons experience human rights violations in various roles, as prisoners, as voters, as employees, as family members, etc. Second, the Committee’s Views send an important signal that the rights laid down in the ICCPR are applicable to all. Article 10 states that all detained individuals have a right to be treated with humanity and respect. It follows that States parties are not permitted to differentiate negatively between disabled and other prisoners. Third, the outcome indicates that the HRC was operating on some unstated philosophy of “reasonable accommodation”. It follows that States parties should recognize that there are prisoners with different needs and that they have to adjust their systems to

accommodate those needs. Lastly, the HRC’s Views at least imply a rejection of the view that civil and political rights have no implications for the positive treatment of prisoners. The concept of negative human rights, the argument goes, only means that the State has to refrain from certain actions which amount to human rights violations.

And if a disabled individual does not adjust to the conditions under which human rights are usually exercised, it is the individual’s problem and not the State’s. The outcome in Hamilton v. Jamaica goes a long way towards viewing people with disabilities as rights-holders and not as problems. This understanding of human rights in the context of disability has won support not only from the HRC. The European Court of Human Rights heard a similar case in 2001 involving a disabled woman who had been committed to a prison in the United Kingdom for a couple of days. The Court considered that

to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to article 3 [of the European Convention for the Protection of Human Rights and Fundamental

Freedoms]⁹⁶

Another disability case on which the HRC adopted a merits decision was that of Clement Francis v Jamaica (communication No. 606/1994). The complainant was convicted of murder in 1980 and sentenced to death. He remained on death row until murder was reclassified as a non-capital offence in 1992. Among other things, he complained that his mental health had substantially deteriorated as a result of the stress of waiting for the execution of the death penalty and in the absence of appropriate psychiatric attention. It was alleged that the circumstances of his

incarceration therefore amounted to cruel, inhuman or degrading treatment and a lack of respect for his dignity contrary to article 7 and article 10, paragraph 1. To a certain extent, the essence of the complaint was that the conditions of confinement caused the onset of a disability. In its Views, the HRC found, inter alia, violations of article 7 and article 10, paragraph 1. It stated that:

96 Price v. the United Kingdom, Judgment of the European Court of Human Rights (Third Section on Application No. 33394/96, 10 July 2001), para. 30.

Whereas the psychological tension created by prolonged detention on death row may affect persons in different degrees, the evidence before the Committee … indicates that his mental health seriously deteriorated during incarceration on death row. Taking into consideration the author’s description of the prison conditions, including his allegations about regular beatings inflicted on him by warders, as well as the ridicule and strain to which he was subjected during the five days he spent in the death cell awaiting execution in February 1988, which the State party has not effectively contested, the Committee concludes that these circumstances reveal a violation of Jamaica’s obligations under articles 7 and 10, paragraph 1, of the Covenant⁹⁷.

The HRC is thus conscious of how poor conditions of incarceration can themselves give rise to disability. It follows that the HRC would be just as watchful over the conditions of detention of persons whose disability predated their incarceration.

It is interesting that such robust human rights decisions on disability arise in the context of prisons. Many prison inmates are actually persons with either physical or mental disabilities. The area of prisoners’ rights is, of course, much more developed than that of the human rights of persons with disabilities. The fact that disability issues are beginning to emerge in the context of prisons is a welcome development.