CRPD Committee jurisprudence

This paper sets out the jurisprudence of the UN Committee on the Rights of Persons with Disabilities (hereinafter “CRPD Committee”), in each of MDAC’s human rights goals. We have added our own commentary in each of the goals. MDAC will keep this document updated on the basis of developments at CRPD Committee level.

This document takes into account the following sources:

The CRPD Committee’s concluding observations with regard to Tunisia (examined during its 5th session, 11-15 April 2011)

Initial remarks

The CRPD Committee acknowledged the initial steps Tunisia is making toward implementation of the Convention albeit in a challenging time for the country politically.  However, the Committee was “concerned at the risk of exclusion of persons who should be protected by the Convention, in particular persons with psychosocial disabilities (“mental illness”) or intellectual disabilities” and MDAC is encouraged by the specific recommendations made by the Committee in this regard:


MDAC GOAL 1: Right to legal capacity

The Committee recommended that Tunisia review the laws allowing for guardianship and trusteeship and “take legal and policy action to replace these regimes of substitute decision making by supported decision making”. The CRPD Committee is currently developing a General Comment on legal capacity (Article 12 of the CRPD) and following its 5th session opened a Call for Papers on the Practical and Theoretical Measures for the Implementation of Article 12.  MDAC welcomes this initiative and hopes that future concluding observations will include details about the legislative and policy measures which States should take in order to implement supported decision-making models.


MDAC GOAL 2: Right to live in the community

With regard to Article 8, the CRPD provision on the rights of children, the CRPD Committee recommends that Tunisia “take steps to replace institutional care for boys and girls with disabilities with community based care”. It is of some disappointment that the CRPD Committee has not yet said anything on Article 19, the right to live in the community with choices equal to others.

In terms of the right to liberty, the CRPD Committee recommended that Tunisia “repeal legislative provisions which allow for the deprivation of disability on the basis of disability, including a psychosocial or intellectual disability”. This is an area of law needing significant clarification and guidance which goes beyond repetition of Convention requirements. So far the CRPD Committee has not provided it. States are left with the recommendation of repealing all mental health laws but no suggestions as to what should replace them. In each country there are significant stakeholders – including some family members, users of mental health services, mental health professionals and service providers – who may well ask philosophical and practical questions. MDAC recommends that the CRPD Committee explains its understanding of Article 17 in some depth to enable States, national monitoring mechanisms and civil society organisations to fully understand its thinking.


MDAC Goal 3: Access to justice

The CRPD Committee further recommended that until new legislation is in place,“all cases of persons with disabilities who are deprived of their liberty in hospitals and specialised institutions be reviewed and that the review also include a possibility of appeal”.

These recommendations send out a clear signal to States that legal provisions permitting the hospitalisation or institutionalisation of persons with intellectual or psycho-social disabilities on the basis of their disability is in contravention of Article 14 of the CRPD.

Although MDAC welcomes the clarity, it is concerned that States may not have enough guidance about how they should go about conducting a systematic review procedure, especially in a State where there is no culture of carrying out such reviews and court hearings. In its future documents the CRPD Committee could point to Article 32 of the CRPD which sets out exchange of knowledge as a form of international cooperation.

A procedure to review all cases of detention should be compatible with due process and fair trial guarantees. This means that persons with disabilities should be provided with individual and public hearings, accessible information regarding their rights, and be provided with adequate legal representation paid for the State. This will require training for judges and attorneys to ensure they have a thorough understanding of the CRPD’s requirements as well as that of relevant domestic law. Judges need this so that they can administer justice in a fair manner, and attorneys need this as they need an appropriate attitude and at least the minimum level of skills in order to provide effective representation to people with disabilities throughout these new procedures.

The CRPD Committee could have also asked the State to ensure that the transition process is monitored under Article 33(2) of the CRPD.


MDAC GOAL 4: Freedom from ill treatment

In its concluding observations on Tunisia, the CRPD Committee says that it is “concerned about the lack of clarity concerning the scope of legislation to protect persons with disabilities from being subjected to treatment without their free and informed consent, including forced treatment in mental health services”, and goes on to say that the State party should, “incorporate into the law the abolition of surgery and treatment without full and informed consent of the patient”,including procedures affecting the reproductive rights of women such as sterilisation.

In recommending abolishing treatment without a person’s full and informed consent, the Committee seems to suggest that in CRPD terms medical treatment can only be given to someone who can and does give their “free and informed” (and later “full and informed”) consent. In a similar way to the Committee’s statements under Article 14, its comments on Article 17 leave open many questions: What is the Committee’s view about life-saving treatment to a person following an accident or injury rendering them unable to provide consent? What is the Committee’s view about mental health treatment to a person who presents with first-onset symptoms of mental illness and social and psychological supports have been tried and failed?


MDAC GOAL 5: Inclusive Education

The Committee noted “deep concern” that in practice inclusive education was not being implemented in Tunisia. The specific components which the CRPD Committee observed include:

  • Non-implementation of a strategy of inclusion.
  • Breach of rules relating to the number of children in mainstream schools.
  • Breach of rules relating to the management of inclusive classes;
  • Non-equitable distribution of schools between localities in the same region;
  • Invisibility of children with disabilities in data related to protection of children.

Among the recommendations of the CRPD Committee towards inclusive education are:

  • An increase of efforts to enforce inclusive education throughout all schools for all children with disabilities;
  • Intensify training for education personnel, including teachers and administrators;
  • Allocate sufficient financial and human resources to implement an inclusive education plan for all children with disabilities.


MDAC GOAL 6: Right to political participation

The CRPD Committee recommended the “urgent adoption of legislative measures to ensure that the right of persons with disabilities, including persons who are currently under guardianship or trusteeship, can exercise their right to vote and to participate in public life on an equal basis with others”.Further, the CRPD Committee recommended that the state party “act with urgency to include an explicit prohibition of disability-based discrimination in an anti-discrimination law, particularly those governing elections […]”.

Worldwide,the opinions of persons with intellectual and psychosocial disabilities are routinely silenced by their disenfranchisement from the political system, including through being denied the right to vote and stand for election, and from participating in legal and policy reforms and monitoring. MDAC welcomes the urgent formulation of the CRPD Committee’s wording to enable people with disabilities in Tunisia to vote in the upcoming elections. However, the CRPD Committee’s wording does not foreclose the possibility which MDAC is observing; that States may move the voting prohibition out of the sphere of legal capacity laws in general, and legislate instead to allow a judge to may remove the right to vote on an individual basis: this development undercuts the universal nature of the right as set out in the Convention. 

 With regard to public participation in monitoring the implementation of the Convention, the Committee was “concerned by the low participation of persons with disabilities” in the institutions mandated to protect the rights of persons with disabilities and also by “the independence of these institutions”.  The Committee recommended that the State party should ensure that the monitoring body to the convention was compliant with the Paris principles and encouraged the support and “creation, capacity building and effective participation of representative organisations or groups of persons with disabilities and parents of persons with disabilities…in the conception and design reform and implementing of polices”.  However, the Committee did not elaborate on ways in which States parties may exercise their duty to closely consult and actively involve these persons with disabilities and their representative organisations in legislative reform and policy making processes.  The recent MDAC publication ‘Building the architecture for change’ provides some initial guidance to states on methods for achieving the effective participation of people with disabilities in the monitoring and implementation of the convention and MDAC hopes that the Committees future concluding observations will comment upon both poor and more  promising practices in this regard.


Reasonable Accommodation

In its first concluding observations on equality and non-discrimination, the CRPD Committee, instructed the state party to, “incorporate the definition of reasonable accommodation in national law and to apply it in accordance with article 2 of the Convention, in particular by ensuring that the law explicitly recognises the denial of reasonable accommodation as a disability based discrimination,”and that the State party “act with urgency to include an explicit prohibition of disability-based discrimination in an anti-discrimination law, particularly those governing elections, labour, education and health, among others”.The strength of this recommendation sends a clear message to States that the implementation of reasonable accommodation is integral to the successful implementation of the convention as a whole. 


Tunisia is required to submit its second periodic report to the CRPD Committee no later than 2 April 2014.

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