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Bundesarbeitsgemeinschaft Psychiatrie-Erfahrener e.V.


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October 8, 2008

PRESS RELEASE

The UN High Commissioner for human rights* confirms:
The draft of the German Federal Government for the ratification of the UN-Convention on the Rights of Persons with Disabilities is a fraud and a falsification

On 1 October 2008 the draft for the ratification of the UN-Convention on the Rights of Persons with Disabilities** was accepted by the Federal Cabinet. In its press release the Federal Government maintains that "The convention of the United Nations concerning the rights of the disabled" will thereby be put into practice on a national level. This statement is wrong and represents a deception in which the actual word and spirit of the draft is concealed with regard to the convention text.

Article 14 1b) of the convention specifies expressly

"that the existence of a disability shall in no case justify a deprivation of liberty"

On the other hand in the "Memorandum of the Convention of 13 December 2006 on the Rights of Persons with Disabilities" ** [which is part of the ratification draft] on page 52 of Article 14 the following restriction is made:

"Both Paragraph 1, small (b) and paragraph 2 establish that imprisonment is in principle not excluded, also for the disabled. A condition is however that for disability, additionally special circumstances must have arrisen, which make the deprivation of liberty necessary. That is for instance the case, if a danger to oneself or to others can only be avoided by means of deprivation of liberty. If there are additional circumstances which justify deprivation of liberty, this can be permissible also if the circumstances justifying deprivation of liberty are based on a disability. "

With fraudulent intention the draft** thereby makes a contradicting and false interpretation of the convention text as concerns the conditions for deprivation of liberty of disabled people, which expressly serves to leave untouched the existing special laws for the so-called „mentally ill“ in the Federal Republic (mental health laws: PsychKG, §63 StGB, Regulations with regard to custodianship), which regularly justify the restriction of basic and human rights with a reference to an alleged "danger to oneself or others".

The note of the UN High Commissioner for Human Rights* on the occasion of the "Dignity and Justice for Detainees Week" (6 - 12 October 2008) confirms our conclusion that the convention text is falsified:

"International human rights law and standards are very clear: persons with disabilities have the right to liberty and security of the person on an equal basis with others. The existence of a disability can in no case justify a deprivation of liberty. Persons with disabilities may be lawfully deprived of their liberty for having committed a crime or violated the law."

Legal equality of the "mentally ill" means that they have, just as with all others, the right to bring their health or their life into danger without being punished by the state. In addition, it means that also the denial of freedom based on an assumed or real danger to others, as is provided for in police and penal codes, may only serve to be applied in accordance with these general laws and as a measure to ward off danger, but not, however, for the purpose of the "correction of one’s conduct". In any case, the UN convention in all of these cases forbids that a disability (diagnosed here as a "mental illness") is a special reason for the restriction of human rights.

The usual practice of justifying the deprivation of human rights and the use of coercion with a "danger to oneself or others" or an assumed or real need of assistance is unmistakably condemned by the UN High Commissioner:

"In violation of relevant international standards, in many legal systems persons with disabilities, and especially persons with mental and intellectual disabilities, are deprived of their liberty simply on the grounds of their disability. Such disability is sometimes used to justify preventive detention measures on the grounds that the person with a disability might cause harm to himself or to others.

In other cases, persons with disabilities are deprived of their liberty for their care and treatment. All such practices, policies and laws are in contravention of existing international standards

The Convention on the Rights of Persons with Disabilities (CRPD) states clearly that deprivation of liberty based on the existence of a disability is contrary to international human rights law, is intrinsically discriminatory, and is therefore unlawful. Such unlawfulness also extends to situations where additional grounds—such as the need for care, treatment and the safety of the person or the community—are used to justify deprivation of liberty."

In the practical jurisdiction up to the highest level the “memorandum” will be regarded as the intentional and a (binding) opinion of the legislator in the interpretation of the wording of the law. Individuals could therefore not defend themselves against forced incarceration in a psychiatric hospital or coercive treatment by referring to the UN-Convention on the Rights of Persons with Disabilities, because the courts would adhere to the German laws contradicting the convention.

Thus in the UN-Convention there is no room for interpretation to favor the fraudulent falsification in the draft of the Federal Government. The Federal Government and every member of the “Bundestag” as well as all 16 regional state parliaments were informed by the “Bundesarbeitsgemeinschaft Psychiatrie-Erfahrene“ (a Federal Association of Psychiatric Survivors) of the planned convention fraud. If the draft is nevertheless passed, then the only conclusions that can be drawn from this are:

  • The UN-Convention becomes a mockery of the hopes of the disabled for real legal equality.
  • With this act the Federal Government and its supporting parties degrade the UN if their convention is ratified on the national level without practical consequences even for its core domains (deprivation of liberty, torture).
  • Beyond that, the idea of universal human rights and their impact are weakened if a convention allegedly intended to strengthen them can be side-stepped in this blatant way.

We therefore sent a letter to the UN High Commissioner for Human Rights informing her about our struggle with the German politicians and delivering a full documentation of all our correspondence. We urgently requested her to defend on short notice the UN-Convention against the fraud of the German government during the ratification process in the parliament.

We have seen that other states who ratified the convention up till now have taken no action to abolish the illegal mental health laws. We understand that in Germany it is a unique opportunity that the government revealed its planned fraud with the convention before the ratification. Therefore we think it is of prime importance for all disabled people to stop this fraud in Germany and to encourage the High Commissioner for Human Rights to strongly oppose the fraud. Please write to the High Commissioner, Navanethem Pillay, with your concerns about the German ratification process, demonstrating international attention on this matter and encourage her to take action:

High Commissioner for Human Rights
Mrs. Navanethem Pillay
Palais des Nations
CH-1211 Geneva 10
Switzerland

civilsocietyunit@ohchr.org



* Source: DIGNITY AND JUSTICE FOR DETAINEES WEEK, Information Note No. 4, Persons with Disabilities: www.ohchr.org/EN/UDHR/Documents/60UDHR/detention_infonote_4.pdf

** Bundesrat Drucksache 760/08: www.bundesrat.de/cln_090/SharedDocs/Drucksachen/2008/0701-800/760-08,templateId=raw,property=publicationFile.pdf/760-08.pdf

 

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