CRPD/C/GC/1
provisions of article 12. Upon ratifying the Convention, States parties must immediately
begin taking steps towards the realization of the rights provided for in article 12. Those
steps must be deliberate, well-planned and include consultation with and meaningful
participation of people with disabilities and their organizations.
IV. Relationship with other provisions of the Convention
31.
Recognition of legal capacity is inextricably linked to the enjoyment of many other
human rights provided for in the Convention on the Rights of Persons with Disabilities,
including, but not limited to, the right to access justice (art. 13); the right to be free from
involuntary detention in a mental health facility and not to be forced to undergo mental
health treatment (art. 14); the right to respect for one’s physical and mental integrity (art.
17); the right to liberty of movement and nationality (art. 18); the right to choose where and
with whom to live (art. 19); the right to freedom of expression (art. 21); the right to marry
and found a family (art. 23); the right to consent to medical treatment (art. 25); and the right
to vote and stand for election (art. 29). Without recognition of the person as a person before
the law, the ability to assert, exercise and enforce those rights, and many other rights
provided for in the Convention, is significantly compromised.
Article 5: Equality and non-discrimination
32.
To achieve equal recognition before the law, legal capacity must not be denied
discriminatorily. Article 5 of the Convention guarantees equality for all persons under and
before the law and the right to equal protection of the law. It expressly prohibits all
discrimination on the basis of disability. Discrimination on the basis of disability is defined
in article 2 of the Convention as “any distinction, exclusion or restriction on the basis of
disability which has the purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise, on an equal basis with others, of all human rights and fundamental
freedoms”. Denial of legal capacity having the purpose or effect of interfering with the right
of persons with disabilities to equal recognition before the law is a violation of articles 5
and 12 of the Convention. States have the ability to restrict the legal capacity of a person
based on certain circumstances, such as bankruptcy or criminal conviction. However, the
right to equal recognition before the law and freedom from discrimination requires that
when the State denies legal capacity, it must be on the same basis for all persons. Denial of
legal capacity must not be based on a personal trait such as gender, race, or disability, or
have the purpose or effect of treating the person differently.
33.
Freedom from discrimination in the recognition of legal capacity restores autonomy
and respects the human dignity of the person in accordance with the principles enshrined in
article 3 (a) of the Convention. Freedom to make one’s own choices most often requires
legal capacity. Independence and autonomy include the power to have one’s decisions
legally respected. The need for support and reasonable accommodation in making decisions
shall not be used to question a person’s legal capacity. Respect for difference and
acceptance of persons with disabilities as part of human diversity and humanity (art. 3 (d))
is incompatible with granting legal capacity on an assimilationist basis.
34.
Non-discrimination includes the right to reasonable accommodation in the exercise
of legal capacity (art. 5, para. 3). Reasonable accommodation is defined in article 2 of the
Convention as “necessary and appropriate modification and adjustments not imposing a
disproportionate or undue burden, where needed in a particular case, to ensure to persons
with disabilities the enjoyment or exercise on an equal basis with others of all human rights
and fundamental freedoms”. The right to reasonable accommodation in the exercise of legal
capacity is separate from, and complementary to, the right to support in the exercise of legal
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