Liberty and security of the person
States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a) Enjoy the right to liberty and security of person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty
State Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation. (Article 14)
Obligations
This article affirms that persons with disability are to enjoy the right to liberty (personal freedom) and security (non-interference with the person) on an equal basis with others. It provides that persons with disability cannot be deprived of their liberty unlawfully or without proper reason, and that the mere existence of a disability can never justify deprivation of liberty. This means that a person with disability may only be denied liberty for a reason other than their impairment or disability: for example, a person cannot be involuntarily institutionalised just because they have intellectual or psychosocial impairment.
However, at least under Australian law, this formulation has some potential to be circular, as it will sometimes be a characteristic of disability (for example, challenging behaviour arising from underlying impairment that presents a risk of harm to the person or to others) that may provide the basis for the denial of liberty. In drafting this article the Ad Hoc Committee drew a distinction between impairment and disability, and the characteristics or consequences of that impairment that may not be drawn under Australian law.
The article also requires State Parties to ensure that persons with disability who are deprived of their liberty are guaranteed their remaining human rights, including those provided under the CRPD. This includes an obligation on State Parties to ensure that reasonable accommodations are made to ensure persons with disability are able to enjoy their other human rights in fact (rather than just in form). This might include, for example, ensuring that a person who is Deaf who is incarcerated in a criminal justice facility has regular access to an Auslan interpreter so that he or she cannot communicate with prison authorities and other prisoners. The article applies to all processes and circumstances in which persons with disability are deprived of their liberty, not only to denial of liberty under the criminal law and in criminal justice facilities. For example, it applies equally to involuntary detention in a mental health facility and to immigration detention.
Indicators
• Persons with disability enjoy personal freedom on an equal basis with others.
• Persons with disability are free from interference with their person on an equal basis with others.
• Persons with disability are not deprived of liberty without lawful and proper reason.
• The existence of impairment or disability is never a reason for deprivation of liberty.
• Persons with disability deprived of their liberty enjoy fully their remaining human rights.
• Reasonable accommodation is provided to persons with disability deprived of their liberty to ensure their full enjoyment of their remaining human rights.
Example
The right to liberty and security of the person will be particularly relevant to people who through their work are involved in:
• Working with people who are going through the criminal process or using mental health services
• Working in immigration