CRPD/C/GC/6
and hotlines, to ensure that humanitarian aid relief is distributed in an accessible, nondiscriminatory way to persons with disabilities in humanitarian emergencies, and to ensure
that water, sanitation and hygiene facilities in emergency shelters and refugee camps are
available and accessible for persons with disabilities. After emergencies, accessible
reconstruction is decisive for the equality of persons with disabilities in society. To ensure
these elements, States parties must closely engage with persons with disabilities through
their representative organizations, in the design and implementation, monitoring and
evaluation of legislation and policies related to all the stages of emergencies.
F.
Article 12 on equal recognition before the law
47.
The right to legal capacity is a threshold right, that is, it is required for the
enjoyment of almost all other rights in the Convention, including the right to equality and
non-discrimination. Articles 5 and 12 are fundamentally connected, because equality before
the law must include the enjoyment of legal capacity by all persons with disabilities on an
equal basis with others. Discrimination through denial of legal capacity may be present in
different ways, including status-based, functional and outcome-based systems. Denial of
decision-making on the basis of disability through any of these systems is discriminatory. 14
48.
A key difference between the reasonable accommodation obligation under article 5
of the Convention and the support that must be provided for persons with disabilities
exercising their legal capacity under article 12 (3) is that there is no limit on the obligation
under article 12 (3). The fact that support to exercise capacity may impose a
disproportionate or undue burden does not limit the requirement to provide it.
49.
To ensure consistency between articles 5 and 12 of the Convention, States parties
should:
(a) Reform existing legislation to prohibit discriminatory denial of legal capacity,
premised on status-based, functional or outcome-based models. Where appropriate, replace
those with models of supported decision-making, taking into account universal adult legal
capacity without any form of discrimination;
(b)
Provide resources to systems of supported decision-making to assist persons
with disabilities to navigate existing legal systems. Legislating and resourcing such services
should be consistent with the key provisions identified in paragraph 29 of general comment
No. 1 (2014) on equal recognition before the law. This includes basing any systems of
support on giving effect to the rights, will and preferences of those receiving support rather
than what is perceived as being in their best interests. The best interpretation of will and
preferences should replace best-interest concept in all matters related to adults where it is
not practicable to determine the person’s will and preferences;
(c)
States parties should provide protection against discrimination by
establishing an accessible, locally available, low-threshold network of high-quality free
legal counselling or legal aid, which must respect the will and preferences of these persons
and protect their procedural rights (right to legal capacity) at the same level as for other
types of legal representation. States parties must consistently ensure that instruments for
protection are not based on removing legal capacity or otherwise hindering the access of
persons with disabilities to justice.
50.
Training and education should be provided for relevant agencies, such as legal
decision makers, service providers or other stakeholders. States parties are obliged to
ensure the equal enjoyment of all goods and services offered in society, including the goods
and services listed in article 12 (5), which provides examples of goods that persons with
disabilities are particularly precluded from, such as property or services connected to
financial affairs, e.g. mortgages. Article 25 (e) mentions another service which is usually
not open to persons with disabilities, namely, that of life insurance and (private) health
insurance. States parties should take an active, comprehensive approach to ensure equal
enjoyment of goods and services in the private sector. That includes a strengthening of the
14
12
See general comment No. 1, para. 15.