1 Conference on Autonomy and Inclusion Copenhagen 7-8 June 2012 The rights of persons with disabilities to participate and be included in community life Mario Oetheimer

2 2 Even if I cannot speak, it doesnt mean I have nothing to say JAG client, Sweden The fundamental rights of persons with intellectual disabilities and persons with mental health problems

3 Two groups of individuals Considered decision to include two distinct groups of individuals: Persons with intellectual disabilities Persons with mental health problems/psychosocial disabilities Different groups, but often face similar reaction from society: discrimination, stigmatisation and social exclusion 3

4 Key issues Effective implementation of the CRPD Separation of legal capacity and right to vote Fundamental rights upheld in involuntary placement and involuntary treatment 4

5 RIGHT TO POLITICAL PARTICIPATIO N 5

6 6 CRPD Article 29 of the United Nations Convention on the rights of persons with disabilities States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: (a) Ensure that persons with disabilities can effectively and fully participate in political and public life...: (iii) Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;

7 7 FRA results: The participation spectrum A.EXCLUSION: Denial to all people under partial and plenary guardianship, regardless of their actual, individual level of functional ability B.LIMITED PARTICIPATION: Exclusion hinges on the degree of limitation of legal capacity or evaluation on case by case C.PARTICIPATION: Persons with disabilities are allowed to vote and to be elected like all other citizens, legal capacity notwithstanding ExclusionParticipatio n Limited Participatio n

8 Clear interpretation by CRPD Committee Council of Europe standards A challenge for the EU Member States and for the European Union? Right to vote at elections to the European Parliament (Article 39 of the Charter) Right to vote at municipal elections (Article 40 of the Charter)

9 INVOLUNTARY PLACEMENT AND INVOLUNTARY TREATMENT

10 The scope of the report on involuntary placement and involuntary treatment Involuntary placement and involuntary treatment of persons with mental health problems Civil compulsory measures Persons with full legal capacity Exclusion of living conditions No assessment of implementation 10

11 International and European treaties and standards UN Convention on the Rights of Persons with Disabilities European Convention on Human Rights Oviedo Convention ECtHR case law Council of Europe Recommendation Rec(2004)10 Committee for the Prevention of Torture Standards

12 The adoption of the CRPD in 2006 gave momentum to the rights-based approach to disability Deprivation of liberty delinked from disability Challenges to implementation

13 Criteria for involuntary placement and treatment Great variety of practices among EU Member States: All require the presence of a mental health problem together with: significant risk of serious harm therapeutic purpose significant risk of serious harm and therapeutic purpose

14 Opinion of the person concerned Involuntary placement is possible only if the opinion of the person concerned has been taken into consideration Among EU Member States, opinion is often sought, but not clear how far it is taken into account when deciding on involuntary placement

15 Personal accounts Overwhelmingly negative experiences of involuntary placement or treatment Trauma and fear recurrent themes Few attempts to challenge the lawfulness of compulsory measures More positive experiences when choice and control over treatment Being detained in a hospital and thinking that you can benefit from legal assistance is absolutely utopian. (Man, 44, Romania) It was extraordinarily violent there. I was totally destroyed and shocked: they didnt leave me a choice, and they didnt explain anything to me. I would describe it as an arrest (Woman, 65, France) No one said anything to me about where I was or why I was there, I did not know a thing. (Woman, 47, Latvia) I felt at their mercy. (Man, 66, Germany) In the hospital I was never forced to do anything. (Greece)

16 Next steps at EU level? Greater focus on involuntary placement and involuntary treatment as a discrimination issue Put the issue back on the agenda –Update the 2002 report Ensure participation of persons with disabilities

17 fra.europa.eu For more information: eu