The UN High Commissioner for human rights* confirms:
The draft of the German Federal Government for the ratification
of the UN-Convention on the Rights of Persons with Disabilities
is a fraud and a falsification
1 October 2008 the draft
for the ratification of the UN-Convention
on the Rights of Persons with Disabilities** was accepted
by the Federal Cabinet. In its press release the Federal Government
maintains that "The convention of the United Nations concerning
the rights of the disabled" will thereby be put into practice
on a national level. This statement is wrong and represents
a deception in which the actual word and spirit of the draft
is concealed with regard to the convention text.
14 1b) of the convention specifies expressly
the existence of a disability shall in no case justify a
deprivation of liberty"
the other hand in the "Memorandum
of the Convention of 13 December 2006 on the Rights
of Persons with Disabilities"
** [which is part of the ratification draft] on page 52
of Article 14 the following restriction is made:
Paragraph 1, small (b) and paragraph 2 establish that imprisonment
is in principle not excluded, also for the disabled. A condition
is however that for disability, additionally special circumstances
must have arrisen, which make the deprivation of liberty necessary.
That is for instance the case, if a danger to oneself or to
others can only be avoided by means of deprivation of liberty.
If there are additional circumstances which justify deprivation
of liberty, this can be permissible also if the circumstances
justifying deprivation of liberty are based on a disability.
fraudulent intention the draft**
thereby makes a contradicting and false interpretation of
the convention text as concerns the conditions for deprivation
of liberty of disabled people, which expressly serves to leave
untouched the existing special laws for the so-called „mentally
ill“ in the Federal Republic (mental health laws: PsychKG,
§63 StGB, Regulations with regard to custodianship), which
regularly justify the restriction of basic and human rights
with a reference to an alleged "danger to oneself or others".
note of the UN High Commissioner for Human Rights* on
the occasion of the "Dignity and Justice for Detainees Week"
(6 - 12 October 2008) confirms our conclusion that the convention
text is falsified:
human rights law and standards are very clear: persons with
disabilities have the right to liberty and security of the
person on an equal basis with others. The existence of a disability
can in no case justify a deprivation of liberty. Persons
with disabilities may be lawfully deprived of their liberty
for having committed a crime or violated the law."
equality of the "mentally ill" means that they have, just
as with all others, the right to bring their health or their
life into danger without being punished by the state. In addition,
it means that also the denial of freedom based on an assumed
or real danger to others, as is provided for in police and
penal codes, may only serve to be applied in accordance with
these general laws and as a measure to ward off danger, but
not, however, for the purpose of the "correction of one’s
conduct". In any case, the UN convention in all of these cases
forbids that a disability (diagnosed here as a "mental illness")
is a special reason for the restriction of human rights.
usual practice of justifying the deprivation of human rights
and the use of coercion with a "danger to oneself or others"
or an assumed or real need of assistance is unmistakably condemned
by the UN High Commissioner:
violation of relevant international standards, in many legal
systems persons with disabilities, and especially persons
with mental and intellectual disabilities, are deprived of
their liberty simply on the grounds of their disability. Such
disability is sometimes used to justify preventive detention
measures on the grounds that the person with a disability
might cause harm to himself or to others.
In other cases, persons with disabilities are deprived of
their liberty for their care and treatment. All such
practices, policies and laws are in contravention of existing
The Convention on the Rights of Persons with Disabilities
(CRPD) states clearly that deprivation of liberty based on
the existence of a disability is contrary to international
human rights law, is intrinsically discriminatory, and is
therefore unlawful. Such unlawfulness also extends to situations
where additional grounds—such as the need for care,
treatment and the safety of the person or the community—are
used to justify deprivation of liberty."
the practical jurisdiction up to the highest level the “memorandum”
will be regarded as the intentional and a (binding) opinion
of the legislator in the interpretation of the wording of the
law. Individuals could therefore not defend themselves against
forced incarceration in a psychiatric hospital or coercive treatment
by referring to the UN-Convention on the Rights of Persons with
Disabilities, because the courts would adhere to the German
laws contradicting the convention.
in the UN-Convention there is no room for interpretation to
favor the fraudulent falsification in the draft of the Federal
Government. The Federal Government and every member of the “Bundestag”
as well as all 16 regional state parliaments were informed by
the “Bundesarbeitsgemeinschaft Psychiatrie-Erfahrene“
(a Federal Association of Psychiatric Survivors) of the
planned convention fraud. If the draft is nevertheless passed,
then the only conclusions that can be drawn from this are:
UN-Convention becomes a mockery of the hopes of the disabled
for real legal equality.
this act the Federal Government and its supporting parties
degrade the UN if their convention is ratified on the national
level without practical consequences even for its core domains
(deprivation of liberty, torture).
that, the idea of universal human rights and their impact
are weakened if a convention allegedly intended to strengthen
them can be side-stepped in this blatant way.
therefore sent a letter to the UN High Commissioner for Human
Rights informing her about our struggle with the German politicians
and delivering a full documentation of all our correspondence.
We urgently requested her to defend on short notice the UN-Convention
against the fraud of the German government during the ratification
process in the parliament.
have seen that other states who ratified the convention up till
now have taken no action to abolish the illegal mental health
laws. We understand that in Germany it is a unique opportunity
that the government revealed its planned fraud with the convention
before the ratification. Therefore we think it is of prime importance
for all disabled people to stop this fraud in Germany and to
encourage the High Commissioner for Human Rights to strongly
oppose the fraud. Please write to the High Commissioner, Navanethem
Pillay, with your concerns about the German ratification process,
demonstrating international attention on this matter and encourage
her to take action:
Commissioner for Human Rights
Mrs. Navanethem Pillay
Palais des Nations
CH-1211 Geneva 10
* Source: DIGNITY AND JUSTICE FOR DETAINEES WEEK,
Information Note No. 4, Persons with Disabilities: www.ohchr.org/EN/UDHR/Documents/60UDHR/detention_infonote_4.pdf
Bundesrat Drucksache 760/08: www.bundesrat.de/cln_090/SharedDocs/Drucksachen/2008/0701-800/760-08,templateId=raw,property=publicationFile.pdf/760-08.pdf