Learning more about politics and strategies

I finished the last part of this report after coming home:

Report of 25 juli 2012:
It was a lovely day again. It is so great to be here. I don’t want to think about how few days there are left here. We have such a nice group of students. Despite the hard work, it really feels like a holiday.

As a new tradition we started class again with a bit of classical music. I liked that a lot.

The first session at 9 AM in the morning was done by Oliver Lewis about Right to political participation. This is about core politic, like voting and being elected, and about the political sphere, such as policies and monitoring. We should remember that people fought and died for the right to vote. It means a lot. We discussed which articles of the CRPD were relevant (art 29, art 4 and especially 4.3, and the preamble o and y, also article 5, art 3.c and art 33)
Then we talked about the Venice Commission (which advices 57 countries) and we discussed their Interpretative Declaration to the code of good practices in electoral matters on the participation of people with disabilities in elections, proposal of 2010.
About universal suffrage (II.1.2) it said: “No person with a disability can be excluded from the right to vote or to stand for election on the basis of his/her physical and/or mental disability unless the right to vote and to be elected is imposed by an individual decision of a court of law because of proven mental disability.” (we read this article several times, because it is so weird). Exclusion on the basis of a mental disability is against the CRPD. There was no further specification of what kind or degree of mental disability, and whether that includes intellectual disability, nothing about tests or guidelines, and it gives a huge power to courts. There were no civil society organizations involved.
This form of exclusion of persons with mental disabilities is direct discrimination (a deliberate attempt to allow for exclusion on the right to vote), stating that persons with mental disabilities need a certain capacity or talent to vote. We discussed what could have been the motivation to do this, and the probably assumed that persons with mental disabilities do not understand the system and the consequences of voting. It was probably to prevent “mad votes” (without thought/ random), “incompetent votes” (without capability) or “manipulated votes” (with outside influence), in order to filter out “bad and non-legitimate votes that might pollute democracy” (whatever that means).
The exclusion of persons with mental disabilities would not be not automatic, but based on a decision of a court of law, which then would need to have a test for capability. (Remember that women used to be perceived as non capable, incompetent voters). And what test could be done to test capability? Would that be something like asking what is democracy, name the president, which parties participate, which one do you like, and why do you like that, why do you want to vote? This test could be applied to anyone, but also some “normal people” don’t know this. Every voter could register and be reviewed regularly, but then voting is not secret anymore. And setting criteria is unethical. And this just can’t be asked by a judge.
Also “normal votes” are not always rational, such as traditional votes, sexy votes, no-assessment-votes, and emotional/feelings-based votes, and there is a huge amount of manipulation by media. We allow racist-votes even while that goes against treaties. And we know that manipulation and fraud do not disappear by excluding a vulnerable group from voting.
The CRPD is about fundamental choices, and support of a person of free choice (art 29.a iii). A group of NGO’s and DPO’s (incl. MDAC and ENUSP) then drafted a letter for the Venice Commission, asking to strike out the words. The Venice Commission burst into a tough discussion, and then waited 2 sessions before it again brought this subject to the floor. Of course there had been done a lot of lobbying and awareness-raising in the mean time.
In 2011 the Venice Commission decided to strike out the text on the exclusion of persons with mental disabilities, and according to the CRPD stated that countries should allow everyone to vote, and some persons need support to be enabled. Voting is a free and equal expression of free will. Voting is a right and doesn’t have to be deserved.
Art. 29 also deals with standing for elections and being part of public affairs (regular participation), but 29.b.2 also allows persons with disabilities to form and join parties, NGO’s, DPO’s. Art. 29 is a diversity issue. There was a small debate on whether having a quota in parliament would be tokenistic (as being integrated, but not included).

We then discussed the Policy Cycle; 1. Agenda setting, 2. planning, 3. implementation, 4. monitoring and evaluation (and then back to 1.). Article 33 of the UN CRPD is about inclusion of persons with disabilities in monitoring, and art 4.3 says: “In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations”.
The right to vote is a universal concept, and governments are obliged to take all measures to enable voting for all. People died for this right, and it appears to be so fragile, and cannot be taken for granted.

Then we had another session on Legal Capacity Litigation done by Oliver Lewis and Lycette Nelson.
There is a difference between demolishing an abusive system, decoupling subsequent losses of rights or demanding support. “Destroying the abusive system” can be done by attacking procedures and substance (for example based on art 12.2 – “the shield” for the enjoyment of legal capacity on an equal basis with others in all aspects of life). While demanding support is about access to support (art. 12.3 – “the sword” for ensuring that State Parties take appropriate measures to provide access to the support persons may require in exercising their legal capacity).

Then we talked about the case of Shtukaturov v. Russia. Mr. Shtukaturov had no right to appeal against his guardianship, because he was put under guardianship. He was not informed of being placed under guardianship, and the official time-limit of 10 days to appeal had passed over a year before. He had had no opportunity to be heard. He was hospitalized involuntary and was judged as incapable. The guardian authorized for hospitalization, so it was registered as “voluntary treatment”. But mr. Shtukaturov still expressed his will and didn’t agree, he was able to start a case with a lawyer, (who didn’t get access to him in the hospital by the way). By approaching the lawyer Mr. Shtukatorov had illustrated that he was capable of communication and consent.
The European Court found that this complete deprivation was disproportionate. In Russia there is no alternative to plenary guardianship, and this is “status-based” (which means having a diagnosis can be the basis of complete deprivation of rights). The European Court didn’t make a statement against guardianship on itself, but decided that guardianship needs to be based on individual assessment (functional assessment) for the least restrictive and shortest time limited interventions, with a regular review. And also, the consent of a guardian cannot count as ‘voluntary consent’ of the person involved. The Court did say that guardianship was a “very serious” interference with the right to private life (art.8). Due to a lot of advocacy, the Russian law was amended 3 years later, to move from a status-based approach of guardianship, to an assessment-based (functional) determination of guardianship.
The case of Stanev v. Bulgaria has a lot of similarities and overlap on the issue of guardianship, but in that case the focus was on the inability to leave and/or appeal, and on being placed in an institution without ever being seen by the state-appointed guardian.
MDAC is now working on follow-up cases against guardianship and on article 8 – right to private life. Delova v. Russia is the follow up to Shtukaturov, which is about a woman who has capacities and support, but still is placed under full guardianship. MDAC also works on the case of Stankov v. Bulgaria, which is very similar to Stanev, but puts more weight on article 8, and stating that a lack of alternatives cannot be a reason for detention.

Then we talked about whether courts in various countries could order to provide support to provide legal capacity. This depends on the national court-structure. In most countries there is a constitutional court which can order adjustments in the national laws, but in the Netherlands there is not such a court (only a sober Supreme Court, “devoid of politics”). In case a court orders for support, this can be done in a direct concrete way, or in a way that describes which aspects need to be fulfilled, urging to establish structures that comply with these aspects, and which compensate for deficiencies.

Besides guardianship and institutionalization there are some other rights that are at stake and which MDAC wants to address, such as parenting and marrying, properties and inheriting, work and education, compensation of all kind of damages, freedom of residence and health and treatments.

Then I had lunch in the park with Rea Maglajlic from MDAC, and we talked and talked. Rea is willing to help me to write down my narrative and timeline (we can do it by Skype), and then I can get an expert opinion on it (she suggested that that could probably be done by Lycette Nelson, who is a legal expert on the matter), and the lecturers are already searching in their network to connect me to a Dutch lawyer. That would be so great. We talked about many things, and it was so nice that I forgot the time, and I actually was a little bit late for the next session.

The next session was on UN Treaty Body Litigation. Lycette Nelson told us some more about that.
First we checked which countries had ratified CRPD, it’s Optional Protocol, CAT and OPCAT, and ICCPR. And then we talked about what that means, and how it can be used. In many countries international law becomes part of national law after ratification, however, this is not always the case. The Optional Protocol arranges for mechanisms of monitoring and individual complaints (or on behalf of individuals). Also other State Parties who ratified, can ask for an inquiry of a state, when there is evidence of grave or systemic violations that breach with the convention. The first step will then be a research and a confidential report to the state, which aims to resolve deficiencies directly with the government (step 2), and after that there will be a Final Report, which – if the state agrees- can be a public report. (CEDAW and the CRC do not have an optional protocol, but for CRC this is coming).
It is the governments duty to provide national remedies. When all domestic remedies are exhausted and all ways to get justice on a national level failed, it is a choice (in Europe) to ether go to the European Court of Human Rights, or to complain at a treaty body that is ratified by that particular state, such as the CRPD committee, which is open to receive individual complaints, although their resources are quite limited. Generally treaty body procedures are more simplified than national laws, and with regard to the European Court, it depends on which country how long any waiting list is. Other considerations when choosing a strategy for proceeding are: the type of remedy (changing laws, remedies, jurisprudence, compensation and so on), and the costs and time aspects for proceeding. Also mediation and interim measures may be considered. However, there are also cases where violations are addressed, but still occur continuously. It may take some investigation to find the best way for a particular case.

Also other jurisprudence should be checked to see what standards a certain court or region has (such as the European Court on Human Rights has no history of progressive statements on involuntary treatment, and may not be the best place to turn to in cases on involuntary treatments). There is no actual jurisprudence yet on the CRPD, and the CRPD Committee did not yet articulate the interpretation on various articles. It is hard to expect this from others (such as lawyers, judges). So the impact of the CRPD in regional jurisprudence is still quite minimal.
We discussed a little bit more on strategies of using international jurisprudence, concluding observations, general comments and recommendations (binding or non-binding? And which authority?). Most aspects depend on the country involved.

The last session we spent on Moot Court preparation. My group is “Yorban”, the husband who wants to have his wife remaining institutionalized, so we are “the devil’s advocates”. I prepared a list of arguments which we discussed further in the evening. It will contribute to a very educative and realistic role play court.