CRPD/C/GC/1
46.
The segregation of persons with disabilities in institutions continues to be a
pervasive and insidious problem that violates a number of the rights guaranteed under the
Convention. The problem is exacerbated by the widespread denial of legal capacity to
persons with disabilities, which allows others to consent to their placement in institutional
settings. The directors of institutions are also commonly vested with the legal capacity of
the persons residing therein. This places all power and control over the person in the hands
of the institution. In order to comply with the Convention and respect the human rights of
persons with disabilities, deinstitutionalization must be achieved and legal capacity must be
restored to all persons with disabilities, who must be able to choose where and with whom
to live (art. 19). A person’s choice of where and with whom to live should not affect his or
her right to access support in the exercise of his or her legal capacity.
Article 22: Privacy
47.
Substitute decision-making regimes, in addition to being incompatible with
article 12 of the Convention, also potentially violate the right to privacy of persons with
disabilities, as substitute decision-makers usually gain access to a wide range of personal
and other information regarding the person. In establishing supported decision-making
systems, States parties must ensure that those providing support in the exercise of legal
capacity fully respect the right to privacy of persons with disabilities.
Article 29: Political participation
48.
Denial or restriction of legal capacity has been used to deny political participation,
especially the right to vote, to certain persons with disabilities. In order to fully realize the
equal recognition of legal capacity in all aspects of life, it is important to recognize the legal
capacity of persons with disabilities in public and political life (art. 29). This means that a
person’s decision-making ability cannot be a justification for any exclusion of persons with
disabilities from exercising their political rights, including the right to vote, the right to
stand for election and the right to serve as a member of a jury.
49.
States parties have an obligation to protect and promote the right of persons with
disabilities to access the support of their choice in voting by secret ballot, and to participate
in all elections and referendums without discrimination. The Committee further
recommends that States parties guarantee the right of persons with disabilities to stand for
election, to hold office effectively and to perform all public functions at all levels of
government, with reasonable accommodation and support, where desired, in the exercise of
their legal capacity.
V. Implementation at the national level
50.
In the light of the normative content and obligations outlined above, States parties
should take the following steps to ensure the full implementation of article 12 of the
Convention on the Rights of Persons with Disabilities:
(a)
Recognize persons with disabilities as persons before the law, having legal
personality and legal capacity in all aspects of life, on an equal basis with others. This
requires the abolition of substitute decision-making regimes and mechanisms that deny
legal capacity and which discriminate in purpose or effect against persons with disabilities.
It is recommended that States parties create statutory language protecting the right to legal
capacity on an equal basis for all;
12
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