1 Introduction
In spring 2017, the UN Committee on the Rights of Persons with Disabilities (Committee), which monitors the implementation of the Convention on the Rights of Persons with Disabilities (CRPD) by the states parties, in its concluding observations found that Cyprus had not implemented Article 16 CRPD: ‘The Committee is concerned about the insufficiency of legal provisions and accessible mechanisms to detect, report, prevent and combat all forms of violence, including sexual violence in private and public spheres against persons with disabilities, including children’ (CRPD/C/CYP/CO/1, para. 39).
The Committee also proceeded to recommend that the state of Cyprus:
‘strengthen and implement legislation and provide for accessible monitoring and reporting mechanisms to detect, prevent and combat all forms of violence, including sexual violence, against persons with disabilities in all settings, including all types of institutions, with a particular focus on women and children with disabilities.’ (CRPD/C/CYP/CO/1, para. 40, bold in original)
It further recommended that Cyprus ensure capacity-building among social sector staff, inclusive and accessible support services, confidential complaint mechanisms and shelters, and that it immediately ratify and implement the Council of Europe (CoE) Convention on Preventing and Combating Violence against Women and Domestic Violence (known as ‘the Istanbul Convention’) (CRPD/C/CYP/CO/1).
This paper explores the implications of the problem of the insufficiency of implementation of Article 16(3) CRPD in Cyprus by focusing on the situation as it affects adults with intellectual disabilities and it uses the state of Cyprus as a case-study to draw lessons for the implementation of Article 16(3) for Cyprus and other states parties to the CRPD. It examines the current domestic monitoring framework that is in place and seeks to understand some of the reasons for the absence of measures taken to implement Article 16(3) CRPD. Building on the Committee's recommendation to strengthen and implement legislation to provide monitoring and reporting mechanisms, this paper also makes recommendations for measures that the government of Cyprus could take in order to achieve the implementation of Article 16(3) CRPD concerning adults with intellectual disabilities.
2 States’ independent monitoring obligations under Article 16(3) CRPD
Article 16 is one of the fifty articles of the CRPD. The CRPD is one of the most recent core UN international human rights conventions, being adopted in 2006 and entering into force in 2008 (OHCHR, 2016). In international law, it embodies, enshrines and represents a new ‘paradigm’ (Arbour, Reference Arbour2006; Lang, Reference Lang2009; Quinn, Reference Quinn2009; Bartlett, Reference Bartlett2014) and is the first UN international law convention to explicitly state the human rights of persons with disabilities (Lord and Stein, Reference Lord and Stein2008). The CRPD defines the concerns and needs of persons with disabilities in human rights terms, it (re)conceptualises persons with disabilities as ‘subjects’ with human rights equal to other persons and is underpinned by the social model of disability (CRPD, 2006; Waddington, Reference Waddington2007; Kayess and French, Reference Kayess and French2008; Rioux et al., Reference Rioux, Basser and Jones2011). Historically, persons with disabilities had been invisible within the legally binding UN human rights instruments’ framework (ICCPR, 1966; ICESCR, 1966; CEDAW, 1979; CAT, 1984), with no explicit reference made to ‘disability’ until 1989, when the Convention on the Rights of the Child (CRC) was adopted (CRC, 1989, Art. 2, para. 1). During the drafting and negotiations for the development of the CRPD, it was recognised that a number of obligations in other UN human rights conventions were set out in a relatively broad and generic manner, which had allowed for ‘grey areas’ regarding the practical implementation of provisions for particular groups (Kanter, Reference Kanter2015). In contrast, effort was made during the CRPD's drafting and negotiations to ensure that provisions in the CRPD were not only protected, but that it was also made clear to states how they should go about implementing them (Megret, Reference Megret2008). This approach to implementation differs to that found in traditional international human rights law, in which implementation is largely left to the states’ discretion (Megret, Reference Megret2008). By implication, a number of provisions in the CRPD, such as Article 16, reveal more of an awareness of issues of structural power and oppression than the traditional UN human rights framework had done; and fully take into consideration ‘the fact that persons with disabilities have often been as much at risk of having their freedoms curtailed in the private sphere or by society than by acts of the state as such’ (Megret, Reference Megret2008, p. 507).
The right to ‘Freedom from exploitation, violence and abuse’ is articulated in the CRPD as follows: ‘States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects’ (CRPD, 2006, Art. 16(1), emphasis added).
‘Freedom from exploitation, violence and abuse’ is not expressed in the same articulation in other UN human rights conventions, such as the Universal Declaration on Human Rights (UDHR, 1948, adopted in 1948 by the United Nations General Assembly) or the International Covenant on Civil and Political Rights (ICCPR, 1966) (Megret, Reference Megret2008). The terms ‘exploitation, violence and abuse’ are not found in the UDHR; rather the formulation used is that ‘Everyone has the right to life, liberty and security of person’ (UDHR, 1948, Art. 3). Similarly, they are not found in the ICCPR, save for the term ‘violence’, in the context of the prohibition of national, racial or religious hatred advocacy, which ‘constitutes incitement to discrimination, hostility or violence’ (ICCPR, 1966, Art. 20(2)). Nevertheless, the terms ‘exploitation’, ‘violence’ and ‘abuse’ are not wholly ‘new’ to UN human rights conventions. The term ‘exploitation’ is found in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979) in Article 6, where it places an obligation on states parties to take appropriate measures ‘to suppress all forms of traffic in women and exploitation of prostitution of women’ (CEDAW, 1979, Art. 6, emphasis added). Further, the terms ‘violence’, ‘exploitation’ and ‘abuse’ are found in Article 19 of the CRC, which places an obligation on states parties to take appropriate measures ‘to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation’ (CRC, 1989, Art. 19(1), emphasis added). Although the terms ‘violence’, ‘abuse’ and ‘exploitation’ are found in the CRC and the term ‘exploitation’ is found in CEDAW, the absence of the particular and ‘new’ articulation (‘freedom from all forms of exploitation, violence and abuse’) from other human rights conventions appears to pose a challenge for some states parties, such as Cyprus, in interpreting and implementing the said provision (e.g. CRPD/C/ARM/CO/1; CRPD/C/BIH/CO/1; CRPD/C/CAN/CO/1; CRPD/C/CHL/CO/1; CRPD/C/CYP/CO/1; CRPD/C/GTM/CO/1; CRPD/C/ITA/CO/1; CRPD/C/LTU/CO/1; CRPD/C/MDA/CO/1; CRPD/C/UGA/CO/1).
Article 16 is made up of five paragraphs. Article 16(1) places an obligation on states parties to protect persons with disabilities from all forms of exploitation, violence and abuse, within and outside the home, through legislative, policy, educational and social measures (CRPD, 2006). This obligation must include age-appropriate and gender-sensitive assistance and support, such as through the provision of education and information, on how to avoid, recognise and report such instances, to persons with disabilities, their caregivers and their families (CRPD, 2006, Art. 16(2)). Article 16(5) places an obligation on states parties to have in place effective legislation and policies, to ensure that, where there are instances of exploitation, violence and abuse against persons with disabilities, these are identified, investigated and prosecuted (CRPD, 2006, Art. 16(5)). Article 16(4) places states parties under the obligation to take appropriate measures, including through the provision of protective services, to promote the recovery, rehabilitation and social reintegration of persons with disabilities who have been subject to any form of exploitation, violence or abuse (CRPD, 2006, Art. 16(4)). Article 16(3) requires states parties to engage in effective and preventative monitoring: ‘In order to prevent the occurrence of all forms of exploitation, violence and abuse, states parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities’ (CPRD, 2006, Art. 16(3), emphasis added).
This provision places an obligation on states parties to have independent monitoring authorities, to effectively monitor all their facilities and programmes that are designed to serve persons with disabilities, so as to prevent all forms of abuse, violence and exploitation. In accordance with Article 16(3) CRPD, the authorities designated with the independent monitoring obligation need to meet certain requirements: (1) they must be authorised to monitor all facilities – that is, both state and privately run facilities; (2) they need to operate within a CRPD human rights framework; and (3) they must be independent (CRPD, 2006, Art. 16(3)).
Concerning the third requirement, the term ‘independent’, the wording employed in Article 16(3) CRPD, is that of ‘effectively monitored by independent authorities’ (emphasis added). This wording is similar to the text of Article 33(2) CRPD, which reads ‘independent mechanisms, … shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights’ (CRPD, 2006, Art. 33(2), emphasis added) and the text of Article 18(4) of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT, 2002, adopted in 2002 by the United Nations General Assembly), which reads ‘national preventive mechanisms, … shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights’ (OPCAT, 2002, Art. 18(4), emphasis added).
In both Articles 33(2) CRPD and 18(4) OPCAT, reference is made to the Paris Principles. This places an obligation on states parties, under the CRPD (2006) and the OPCAT (2002), that the bodies they designate must, respectively, meet with the UN Paris Principles (de Beco and Murray, Reference de Beco and Murray2014). Although the Paris Principles are not directly referred to in Article 16(3) CRPD, these principles can be referred to as guidance in interpreting the ‘independence’ criterion for the designated independent monitoring authority.
The Paris Principles set out the characteristics national human rights institutions (NHRIs) are required to meet (UNGA, 1993). These state that: the body must have the authority to promote and protect universal human rights, and should have a broad a mandate as possible concerning the protection and promotion of human rights set out in domestic legislation or Constitution (UNGA, 1993; de Beco and Murray, Reference de Beco and Murray2014). The body's independence must also be guaranteed by statute or the state's Constitution, and it should have adequate resources so as not to be dependent on and subject to governmental control; there must also be a mandate for the appointment of its staff, and staff must not be seconded or redeployed (UNGA, 1993; ICC, 2013; de Beco and Murray, Reference de Beco and Murray2014). The body must be pluralist and representative; it must be somewhere between a governmental and non-governmental actor; and its composition must allow the participation of human rights’ non-governmental organisations (NGOs) (UNGA, 1993; de Beco and Murray, Reference de Beco and Murray2014). Lastly, the body must have adequate powers of investigation (UNGA, 1993; ICC, 2013).
3 The insufficient implementation of Article 16(3) CRPD in Cyprus
Cyprus signed the CRPD in 2007 and ratified it in 2011. Six years after ratifying and ten years after signing the CRPD, the UN CRPD Committee found that Cyprus had insufficiently implemented Article 16(3) CRPD (CRPD/C/CYP/CO/1). At the domestic level, examination of Cyprus's State Report to the UN CRPD Committee (prepared by Cyprus's designated focal point for the CRPD (Art. 33(1)) revealed that no measures had been taken and that none was planned to implement Article 16(3) (DSIPD, 2013b; CRPD/C/CYP/1, 2015). Also, examination of Cyprus's National Disability Action Plan (also prepared by the focal point) revealed that the scope of Article 16(3) CRPD did not feature as a ‘priority area’ in the National Disability Action Plan (DSIPD, 2013a). Further, concern over the absence of implementation of Article 16 CRPD had been expressed at the domestic level by the Cypriot Independent Authority for the Promotion of the Rights of Persons with Disabilities (the IAPRPD): ‘There is no evidence that policies or practices of the responsible services [that] carry out a supervisory role in secluded environments such as institutions … implement articles … 16 or other relevant human rights standards’ (IAPRPD, 2016b, para. 54).
The IAPRPD also went on to state that the ‘absence of substantial supervision’ of institutions preserves persons with disabilities’ invisibility and their exposure to human rights violations under Article 16 (IAPRPD, 2016b, para. 55) and that ‘everyday violations of human rights … within such facilities … inevitably lead to tolerance or even, justification of various forms of violations under articles 16 and 17’ (IAPRPD, 2016b, para. 56). Furthermore, allegations of occurrences of violence and abuse appeared in news reports in 2016 concerning a private institution in Cyprus (ALPHANews, 2016; CYWeekly, 2016; Lemesos, 2016; Liberal, 2016).
These allegations of institutional abuse and violence provide some understanding about the practice of monitoring facilities designed to serve persons with intellectual disabilities in Cyprus and what this may mean in the lives of persons with intellectual disabilities. The allegations concern the ‘St Stephen Institution’,Footnote 2 which is an institution for persons with intellectual disabilities; it is a private initiative, a not-for-profit organisation and charity, which was set up by parents of persons with intellectual disabilities in the 1960s (SSI, 2016a; 2016b). It comprises an institution and four houses in the community, it provides programmes designed for persons with intellectual disabilities and it employs specialised staff (SSI, 2016b). In spring 2016, the news media reported that allegations had been made that included occurrences of violence, physical and mental abuse, and unregulated administration of psychiatric medication to residents at the institution (CYWeekly, 2016; Lemesos, 2016; Liberal, 2016; ALPHANews, 2016). Bad management practices and infighting between staff were also reported (Lemesos, 2016; Liberal, 2016). When the allegations were first published, the institution released a statement expressing sadness at the allegations; however, it also stated that ‘In the distant past there had been isolated unfortunate incidents where foundation staff [were] unable to meet their responsibilities and, on some occasions, demonstrated inappropriate behaviour’ (CYWeekly, 2016, para. 3; NewsBomb, 2016).
The institution's response appears to reflect the view that institutional violence and abuse against persons with disabilities in care-related settings are largely seen through a ‘welfarist prism’ and that ‘the well-meaning bent of that perception’ may have the implication that ‘the abuse is … not identified, not challenged, or is excused’ (Bartlett and Schulze, Reference Bartlett and Schulze2017, p. 3).
Complaints were initially received by the Social Welfare Services (SWS) and later also by the Committee for the Protection of Mentally Retarded Persons (CPMRP, ‘the Committee’) (CYWeekly, 2016; Lemesos, 2016; Liberal, 2016c). It was reported that the SWS had planned to ‘follow very closely the developments at the St Stephen Institution and investigate all the complaints, as the situation must be clarified as soon as possible’ (Lemesos, 2016, para. 1). Nevertheless, no further information was subsequently made publicly available concerning whether investigations had been carried out or about their outcomes (October 2016). The Committee had also called for the state authorities and the SWS to intervene and investigate the allegations (Lemesos, 2016). Furthermore, no information has been publicly made available as to whether other bodies, such as the Independent Authority for the Prevention of Torture (IAPT), the National Independent Human Rights Authority (NIHRA) and the IAPRPD, may have also investigated the allegations. There is no evidence to demonstrate that action has been effectively taken in line with Cyprus's obligations under Article 16(3) CRPD despite the allegations of violence and abuse receiving wide news media coverage.
4 Examination of the current domestic monitoring framework
Given the concerns about the insufficient implementation of Article 16 by the UN CRPD Committee, and the apparent domestic failure to investigate allegations of abuse at the St Stephens Institution, it is important to understand what existing mechanisms are already in place (pre-dating ratification of the CRPD) to monitor facilities that serve adults with intellectual disabilities in Cyprus. Such facilities operate in the form of day centres, institutions and houses in the community; they are run by the state, or are privately run by charities or foundations (SWS, 2014a; Symeonidou, Reference Symeonidou2015). Authorised to inspect or visit these facilities are three governmental and semi-governmental bodies, which are:
1 the SWS;
2 the CPMRP; and
3 the IAPT (CPMRP, 2014; IAPT, 2014; SWS, 2014a; OCAPHR, 2015; Symeonidou, Reference Symeonidou2015).
In this section, I examine these three bodies to identify their possible relationship to the Article 16(3) CRPD requirements.
4.1 The SWS
The SWS is a Ministry of Labour, Welfare and Social Insurance (Ministry of Labour) department that was created in 1952 (SWS, 2014b). Two pieces of legislation authorise the SWS to inspect privately run facilities designed to serve persons with intellectual disabilities, which are the Shelters for the Elderly and the Disabled Laws of 1991 until 2011 (L. 222/1991) and the (Day) Centres for Adults Law of 1997 until 2011 (L. 38(I)/1997). In accordance with the Shelters for the Elderly and the Disabled Law, the SWS is authorised to inspect the physical environment of private shelters, the residents and the arrangements in place concerning the residents’ treatment, care and welfare, as well as records kept concerning the shelter (L. 222/1991, Art. 8(1)). In accordance with the (Day) Centres for Adults Law, the SWS is also authorised to inspect the physical environment of privately run day centres for adults; the staff and the residents; and the arrangements in place concerning the residents’ care, protection, employment, entertainment, food provision and welfare; as well as records concerning the day centre (L. 38(I)/1997, Art. 8(1)). One of the SWS's aims is to carry out systematic inspections of all private facilities and to ensure that the facilities’ owners comply with the relevant legislative provisions and regulations (HoR, 2012; SWS, 2014c). In situations of non-compliance, a private shelter's or a day centre's licence to operate may be revoked by the Minister of Labour or the SWS's Director, respectively. With reference to the requirements that authorities designated with the Article 16(3) CRPD independent monitoring obligation must meet, first, they must be authorised to monitor both state and privately run facilities. The SWS, however, is only authorised to inspect privately run facilities. Second, they must operate within a CRPD human rights framework. However, the regulatory framework the SWS operates within is not a human rights or a CRPD human rights framework (Symeonidou, Reference Symeonidou2015; IAPRPD, 2016b). Further, SWS staff are not familiar with the CRPD's provisions (IAPRPD, 2016b) and the IAPRPD has recommended SWS staff should receive training on the CRPD's provisions and the social model of disability (OCAPHR, 2014). Third, the designated body must be independent in view of the Paris Principles. The SWS is a department of the Ministry of Labour and not a human rights body; it does not have a broad mandate based on a human rights framework, nor is it autonomous from government – as it is a ministry department. Furthermore, it does not meet the requirement of pluralism in its composition and has limited powers of investigation. Therefore, the SWS, in its capacity as an existing body to monitor facilities that serve adults with intellectual disabilities in Cyprus, falls short of meeting the Article 16(3) CRPD requirements.
4.2 The CPMRP
The CPMRP is a semi-governmental organisation,Footnote 3 which falls under the authority of the Ministry of Labour and was established in 1989. The legislation that authorises the Committee to inspect state-run institutions and facilities where persons with intellectual disabilities reside, are employed or occupied is the Mentally Retarded Persons Law of 1989 (L. 117/1989). The Committee can inspect the conditions at state-run facilities and institutions, employment terms and the safety of persons with intellectual disabilities, and it can also submit suggestions (L. 117/1989, Art. 6(k)). However, in contrast to the SWS, it does not have the authority to order any corrective measures (CPMRP, 2014). Thus, regarding the Article 16(3) CRPD requirements, that the body must be authorised to monitor both state and privately run facilities, the Committee is only authorised to inspect state-run facilities, where this has first been communicated with the state services. It thus does not have adequate powers of investigation.
Second, there is the requirement that the monitoring body must operate within a CRPD human rights framework. The Committee operates within a quasi-human rights framework (L. 117/1989), which is in desperate need of updating to bring it in line with the CRPD's human rights framework. Although the Committee tasks itself with the purpose of promoting, protecting and ensuring the rights of persons with intellectual disabilities, through the application of domestic law and international human rights conventions (CPMRP, 2014), its legislative framework and name are outdated. It is relevant to note that, in the drafting of the 1989 legislation, elements were taken and terminology was adopted from the UN Declaration on the Rights of Mentally Retarded Persons (UNGA, 1971) and the Declaration on the Rights of Disabled Persons (L. 117/1989, Preamble) (UNGA, 1975), which also explains the problematic and outdated language of ‘mentally retarded’ used in the legislation and in the Committee's name.
The Committee is aware that the legislative framework is outdated. In 2012, it considered reform of the Mentally Retarded Persons Law of 1989 ‘necessary’ to bring it in line with the CRPD (CPMRP, 2012, p. 20). Further, multiple attempts have been made by the Committee to achieve reform of the 1989 legislation in the form of legislative Bills; nevertheless, no changes have been achieved (CPMRP, 2010a; 2012; 2014; Symeonidou, Reference Symeonidou2015). The absence of legislative reform is linked to a number of domestic tensions: there was a tension concerning whether the Committee, in its capacity as a semi-governmental organisation that is funded by the Ministry of Labour, could be granted authority to monitor other state facilities. Another tension concerned the issue of potential overlap of roles: for example, a Bill was put forward in 2012 but was not promoted by the Ministry of Labour because it was concerned that there would be overlap between the Committee's role and the independent mechanism's role (held by the IAPRPD, in view of Article 33(2) CRPD) (CPMRP, 2012). The most recent suggested legislative amendment was a Bill proposed in 2013 by the Department of Social Inclusion for Persons with Disabilities; this was the Protection and Safeguarding of the Rights of Persons with Intellectual Disabilities Bill of 2013 (CPMRP, 2014; Symeonidou, Reference Symeonidou2015). This Bill, however, was again objected to, this time by the Cypriot Confederation of Organisations of the Disabled (CCOD) and the Pan-Cyprian Parents Association of Retarded Persons (PCPARP), because the Bill would have had the effect of restricting the Committee's role to one that would be purely consultative (CPMRP, 2014). Therefore, no changes have been made to the Committee's legislative framework since 1989. Although the Committee's mandate and responsibilities are based on a quasi-human rights framework that is in need of amendment to bring it into line with the CRPD human rights framework, and despite the lack of legislative reform, evidence suggests that the Committee's staff have knowledge on and promote the CRPD's provisions (CPMRP, 2012; 2013). For example, in 2010, the Committee organised the first conference in Cyprus on Article 12 CRPD (CPMRP, 2010b).
Third, the designated monitoring body must be independent, using the Paris Principles as guidance. The Committee's position and composition are unusual: although the Committee is not a governmental department per se, as it is a semi-governmental organisation, it still, to a large degree, comes under the authority of the Ministry of Labour, as it is directly reliant on funding from the ministry (L. 117/1989). Also, in its staffing composition, it comprises ‘state’ and ‘private’ members (L. 117/1989; CPMRP, 2014). ‘State members’ are governmental officers from the Ministries of Labour, Welfare and Social Insurance; Education and Culture; Health; and Finance (L. 117/1989, Art. 5(1); CPMRP, 2014). ‘Private members’ must be parents and siblings of persons with intellectual disabilities, selected by parents and siblings of persons with intellectual disabilities, who are members of the PCPARP (L. 117/1989, Art. 5(2); CPMRP, 2014). This outdated provision does not meet with the CRPD's principles of full and effective participation of persons with disabilities and their inclusion in society, or the general obligation to involve them and their DPOs in decision-making processes concerning issues related to them (CRPD, 2006, Arts 2, 4(3)). Further, the Committee is presided over by the Ministry of Labour's Department of Social Inclusion for Persons with Disabilities’ Director (MLWSI, 2013). As the Committee is dependent on funding from the Ministry of Labour, and its membership comprises people appointed by the ministry, it is therefore not autonomous from the government. Although the Committee does not meet the criterion of independence, it comes closer than the SWS when using the Paris Principles as guidance on the point that the body must be pluralist and representative. This is because the Committee has strong links with civil society, as it is interlinked with the PCPARP through its composition. It thus could satisfy the pluralism criterion.
Overall, the Committee is a semi-governmental organisation under the authority of the Ministry of Labour and it is not autonomous from government. Although the 1989 legislation is situated within a quasi-human rights framework, the Committee does not have a broad mandate based on human rights and it is not a human rights body. Although it is close to meeting the requirements of pluralism in its composition, it has limited powers of investigation. Therefore, the Committee, in its capacity as an existing authority to monitor facilities that serve adults with intellectual disabilities in Cyprus, requires legislative reform in order to meet with the Article 16(3) CRPD requirements.
4.3 The IAPT
The IAPT operates within, and is part of, the framework of the Office of the Commissioner for Administration (Ombudsperson) and Protection of Human Rights (OCAPHR) (the Commissioner for Administration Laws of 1991 until 2014 (L. 3(Ι)/1991)). The IAPT was established in 2009 when the OCAPHR was designated the role of national preventative mechanism (NPM), following Cyprus's ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT/Optional Protocol) in 2009 (L. 2(III)/2009, Art. 4; OCAPHR, 2015).Footnote 4 The Optional Protocol requires states parties to establish or designate NPMs for the prevention of cruel, inhuman or degrading treatment or punishment, and torture, at the domestic level (OPCAT, 2002, Art. 3). The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Optional Protocol) (Ratification Law) of 2009 (L. 2(III)/2009) authorises the Commissioner for Administration (Ombudsperson) to make visits to places of detention where the Commissioner has first provided the (private or state) authority responsible for the place of detention with written notification concerning the intention to visit within a specified time period (L. 2(III)/2009, Arts 2, 5(1), 5(2), 5(3)). During these visits, the Commissioner has the right to access all premises and facilities of the place of detention, to examine the treatment of detainees, to hold confidential interviews with detainees and other persons in private, as well as to request documents concerning the place of detention (L. 2(III)/2009, Arts 5(4)(a), 5(4)(b), 6(2)(a), 6(2)(b), 10). Following the visits, the Commissioner must submit reports to the responsible authorities that may include recommendations (L. 2(III)/2009, Arts 7(1), 7(3)). Thus, concerning the Article 16(3) CRPD requirements that the body must be authorised to monitor both state and privately run facilities, the Commissioner, operating within this IAPT framework, satisfies this requirement, as they are authorised to visit both state and privately run facilities.
Second, there is the requirement that the monitoring body must operate within a CRPD human rights framework. The IAPT has the authority to promote and protect human rights, as set out in its mandate and enshrined in legislation; the Commissioner's visits are carried out in order to strengthen the protection of detainees from torture and other cruel, inhuman or degrading treatment or punishment; and, where recommendations are made by the Commissioner, these must take into consideration UN human rights norms (L. 2(III)/2009, Arts 5(4)(b), 7(2)). In 2012, the IAPT set as its priority for the year the conduct of visits to facilities serving persons with disabilities and older persons (IAPT, 2012; 2013). A total of four visits were carried out; two were to private ‘shelters for the elderly and disabled’ and two visits were to Ward 14 at the ‘Athalassa’ Psychiatric Hospital (IAPT, 2012; 2013). Following the visit to the private shelter in Nicosia, the IAPT concluded that the environment and hospitality conditions were ‘very satisfactory’ and considered that it should serve as a ‘best practice’ example for other private and state-run shelters concerning the provision of comprehensive and specialised care to persons with disabilities (IAPT, 2013a, para. 10). In contrast, following the visit to the private shelter at Trahoni, the Commissioner expressed concerns over recreation and entertainment facilities for the residents, considered that the activities offered at the shelter could be improved and stated that ‘the provision of creative activities to persons of advanced age as well as to persons with disabilities comprises a particularly important component in their care and in the provision of stimuli to prevent their institutionalization’ (IAPT, 2012, para. 10).
Furthermore, the report highlighted and expressed great concern for the broader issue of persons with psychological problems or disabilities being hosted in shelters where the majority of the residents are persons of advanced age (IAPT, 2012). The Commissioner acknowledged that domestic legislation allows the residence of adults with disabilities in such shelters (L. 222/1991) but expressed ‘deep reservations and concerns’ concerning the compatibility of this practice with the internationally recognised human rights of persons with disabilities (IAPT, 2012, para. 13). The Commissioner also expressed particular concern over the fact that, during the residents’ stay in such shelters, no therapeutic intervention by the responsible authorities is provided; rather, medication is administered, in most cases in a routine manner, without the substantive assessment by a team of experts (e.g. psychiatrist, psychologist, social worker) at regular intervals (IAPT, 2012). The Commissioner's report concluded that there is an absence of satisfactory structures for the provision of comprehensive care to persons with disabilities, including intellectual disabilities, leading to ‘extremely adverse consequences for these persons and their families’ (IAPT, 2012, para. 15). The Commissioner requested that staff undergo further training so that they would be able to respond to individuals’ particular support needs (IAPT, 2012), and considered this matter ‘particularly serious’ and that it would be a subject of the Commissioner's future interventions (IAPT, 2012). Deep concern was also expressed that the current legislative framework does not provide for the necessary deprivation of liberty-safeguarding processes that should be followed when a person is accepted into a shelter (IAPT, 2012). IAPT reports demonstrate that IAPT staff have knowledge on, and operate within, the CPRD's provisions (IAPT, 2012). The Commissioner's visits within the IAPT operate within a human rights framework, as set out in the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Optional Protocol) (Ratification Law) of 2009 (L. 2(III)/2009), but are also practised within a CRPD human rights framework (IAPT, 2012).
Third, there is the requirement that the designated monitoring body must be independent, in view of the Paris Principles. The IAPT is a part of the OCAPHR, although the Commissioner is independent, and the OCAPHR has management and control over its budget. Nevertheless, changes to the budget require approval by the Ministry of Finance, and OCAPHR and IAPT staff can be seconded to other governmental departments. This does not meet with the Paris Principles. Concerning whether the IAPT is pluralist and representative, the OCAPHR has relationships with civil society; however, its composition does not allow the participation of NGOs other than in an advisory capacity, as staff can only be civil servants (L. 3(Ι)/1991, Art. 4(2)). This does not look likely to satisfy the pluralist criterion. The finding here also mirrors the Global Alliance of National Human Rights Institutions’ (GANHRI) classification of the OCAPHR as ‘B’ accreditation – that is, ‘Not fully in compliance with the Paris Principles’ (August 2016) (GANHRI, 2016). Therefore, using the Paris Principles as guidance, the IAPT does not meet with all the requirements required by Article 16(3) (CRPD, 2006).
This analysis reveals that, although Cyprus has ratified the CRPD, its pre-existing domestic monitoring framework is not compliant with the Article 16(3) CRPD requirements (Table 1 shows a summary of the characteristics of the SWS, the Committee and IAPT).
Summary of the characteristics of the Social Welfare Services (SWS), Committee for the Protection of Mentally Retarded Persons (CPMRP) and Independent Authority for the Prevention of Torture (IAPT).
5 NHRIs
In addition to the three existing monitoring mechanisms, there are also two NHRIs that may be relevant to the existing monitoring framework, which are:
1 the NIHRA; and
2 the IAPRPD.
In light of the argument presented above, that Article 16(3) CRPD has been insufficiently implemented in Cyprus and that the three existing monitoring bodies do not meet with Article 16(3)’s requirement, it is also important to understand the role of the two NHRIs and what their relationship with the Article 16(3) monitoring framework may be.
5.1 The NIHRA
Cyprus's first NHRI was established in 1998; this was the National Organisation for the Protection of Human Rights (NOPHR) (PIO, 2006). However, there were concerns that it did not meet with the Paris Principles, and it ceased to operate in 2008. As a result of this, between 2008 and 2011, Cyprus did not have an NHRI. In 2011, the responsibilities previously held by the NOPHR were assigned to the Office of the Commissioner for Administration (Ombudsperson), which now also became the NIHRA (L. 3(Ι)/1991, Art. 3; OCAPHR, 2014). The Office of the Commissioner for Administration, in its original form, had been established in 1991 (L. 3(Ι)/1991) and was concerned with the protection of citizens’ human rights in light of actions by organs of the state. Thus, it had experience in human rights monitoring. In accordance with L. 3(Ι)/1991, the OCAPHR has the power to investigate and examine human rights violations; to prepare reports on human rights matters; to liaise and have consultations with state bodies, human rights organisations and NGOs; and to attend and participate in international and domestic human rights events (L. 3(Ι)/1991, Arts 5, 6; OCAPHR, 2014). The OCAPHR faces understaffing and underfunding, which have been exacerbated by austerity measures (Trimikliniotis and Demetriou, Reference Trimikliniotis and Demetriou2009; IAPRPD, 2016a).
Viewed through the prism of the Article 16(3) CRPD are three requirements. First, the NIHRA can investigate human rights violations. Second, it operates within a human rights framework and evidence demonstrates that its staff have knowledge on and operate within the CPRD's provisions, including that of Article 16 (NIHRA, 2014). For example, the NIHRA published a Position Report in 2014 concerning the serving of a prison sentence by a person with intellectual disabilities that highlighted that there are no appropriate detention facilities for persons with intellectual disabilities in Cyprus (NIHRA, 2014). This was a concern also shared by the Committee (CPMRP, 2014). The report also expressed concern that often the particular support needs of a person with intellectual disabilities cannot be met within the central prison and that the incarceration of persons with intellectual disabilities in the prison environment may ‘contribute to their further marginalisation and victimization’, and may place their human rights in real danger of being violated (NIHRA, 2014, para. 4). Further, the Position Report concluded that a legal vacuum exists concerning the procedure for persons with intellectual disabilities involved in criminal proceedings. It also called upon the responsible authorities to immediately take measures to remedy the situation, and referred to the obligation on states to take all appropriate measures to protect persons with disabilities within and outside the home from all forms of abuse, violence and exploitation, under Articles 16(1) and 16(2) CRPD (2006) (NIHRA, 2014). Third, concerning the Article 16(3) requirement that the designated body must be independent in view of the Paris Principles, the NIHRA is a part of the Office of the Commissioner for Administration, which is not fully in compliance with the Paris Principles.
5.2 The IAPRPD
Outside the Article 16(3) context but within the Article 33(2) CRPD context, the CRPD places an obligation on states to designate an independent mechanism, whose role is to promote, protect and monitor the CRPD's implementation (CRPD, 2006, Art. 33(2)). In Cyprus, this role was designated to the OCAPHR by Ministerial Council Decision in 2012 (CoM, 2012; OCAPHR, 2014). In order to fulfil this role, in 2014, the Office of the Commissioner established the IAPRPD (OCAPHR, 2014). The IAPRPD is authorised to examine situations of non-implementation of the CRPD, to prepare and submit reports to state services with recommendations for the implementation of the CRPD and to carry out research and data collection for the purposes of monitoring the CRPD's implementation (OCAPHR, 2014). The IAPRPD also experiences understaffing and underfunding (IAPRPD, 2016a). Although the IAPRPD has been designated with the role of independent mechanism under the CRPD (Art. 33(2)), it is noted that it has not been designated the role of independent monitoring mechanism (Art. 16(3)).
In view of the Article 16(3) CRPD requirements, the IAPRPD is able to investigate individual and group human rights violations experienced by persons with disabilities. It operates within a CRPD human rights framework and its staff have knowledge on and operate within the CPRD's provisions, including that of Article 16 (NIHRA, 2014). Regarding the third Article 16(3) requirement, that the designated body must be independent in view of the Paris Principles, the IAPRPD is a part of the Office of the Commissioner for Administration, which is not fully compliant with the Paris Principles.
6 Domestic understanding and interpretation of Article 16(3) CRPD
It is evident that no legislative or policy measures to implement Article 16(3) CRPD have been taken in Cyprus. This in turn raises the question as to how Article 16(3) may have been understood and interpreted in the Cypriot context by the bodies responsible for its implementation. Although Cyprus has ratified most binding UN human rights conventions,Footnote 5 in contrast to the CRPD, those conventions do not employ a human rights approach to disability. Further, as noted earlier in this paper, the articulation ‘freedom from all forms of exploitation, violence and abuse’ found in Article 16 CRPD but not in other conventions appears to pose a challenge for some states parties in its interpretation and implementation. The CRPD text is only available in the six UN official languagesFootnote 6; it therefore had to be translated into an official government Greek-language CRPD text before it was incorporated into domestic law.Footnote 7 Textual analysis of the official Cypriot government Greek-translated provisions of Article 16(1) and 16(3) CRPD found that the translation reflected the official UN English-language version. During the CRPD's ratification process, a legal screening process of domestic Cypriot law against the CRPD's provisions was carried out [Author reference]. The Cypriot government found ‘that there was no conflict’ between Cypriot law and the CRPD [Author reference] and that Cypriot law was ‘consistent with the Convention’ (DOTCOM, 2014, webpage). Following this process, the only suggestion the government made for legislative amendment was for an addition to be made to legal capacity legislation in view of Article 12 CRPD [Author reference]. The results of the screening process made no mention of any other CRPD articles [Author reference] and no legislative or policy, changes or additions concerning Article 16 CRPD, including Article 16(3), were identified. This is a significant finding, as it has the implication that the Cypriot government embarked on the implementation phase for the CRPD without having identified further legislative areas in need of reform, including Article 16(3) CRPD.
7 Measures required to achieve the implementation of Article 16(3) CRPD in Cyprus
This paper highlights the need for the immediate implementation of Article 16(3) CRPD in Cyprus. It has demonstrated that no measures have been taken or been planned to implement Article 16(3) CRPD in Cyprus, and that there is an immediate need to designate an independent and effective monitoring framework, which would monitor all facilities designed to serve persons with intellectual disabilities in order to prevent the occurrence of all forms of abuse, violence and exploitation. This section discusses legislative and policy measures, which are needed in order to achieve the implementation of Article 16(3) (CRPD, 2006) in the context of intellectual disability in Cyprus.
7.1 A need for a renewed monitoring role for the CPMRP
The CPMRP has nearly 30 years of experience of working with and supporting individuals with intellectual disabilities and in carrying out inspections of facilities serving persons with intellectual disabilities. Despite numerous attempts made over the last two decades to bring about changes to the legislative framework for the Committee, attempts have not succeeded. The urgent need for an implementation strategy for Article 16(3) CRPD presents a timely opportunity for changes to be made to the Committee's legislative framework and in its status and funding structure, which would lead to an extended and renewed monitoring role for the Committee. The Committee's experience is an invaluable resource that should be utilised, particularly in the context of Article 16(3) CRPD. The most recent Bill of 2013, the Protection and Safeguarding of the Rights of Persons with Intellectual Disabilities Bill of 2013, was correctly objected to by DPOs. A new Bill is required, which directly involves persons with intellectual disabilities in its drafting (CRPD, 2006, Art. 4(3)) and which recognises and utilises the Committee's experience. This would then enable the government to designate the Committee to be part of the Article 16(3) CRPD independent monitoring framework.
7.2 An Article 16(3) CRPD independent monitoring framework: the IAPRPD, the IAPT and the CPMRP
The Office of the Commissioner for Administration was designated the role of an independent mechanism (CRPD, 2006, Art. 33(2)) and created the IAPRPD as an independent mechanism. Elsewhere, it has been argued that the authorities for Articles 33(2) and 16(3) CRPD should also be monitoring places of detention concerning disability issues; this raises issues of potential duplication of monitoring roles under OPCAT, requiring careful co-ordination between the relevant designated bodies (Laing and Murray, Reference Laing and Murray2013a). In the Cypriot context, the IAPRPD (independent mechanism) and the IAPT (NPM) are both part of the Office of the Commissioner for Administration; therefore, co-ordination between the IAPRPD and IAPT should more easily be managed. In turn, the work of these two bodies could be complemented, shared and coordinated, together with a renewed role for the Committee, with the three bodies (IAPRPD, IAPD and the Committee) forming the independent monitoring framework for Article 16(3) CRPD. Such an arrangement is further supported, as elsewhere it has been argued that, in some cases, it is undesirable for the broad range of OPCAT monitoring activities to be undertaken by a single body (Laing and Murray, Reference Laing and Murray2013b).
7.3 Areas in need of further research and reform
This paper highlights the very concerning fact that the current Cypriot legislative framework does not provide for the necessary deprivation of liberty-safeguarding processes when a person moves to a shelter (IAPT, 2012b). The Office of the Commissioner for Administration has communicated a report on this issue to the Ministry of Labour and the SWS (IAPT, 2012b) and action is pending. This issue needs to be acted upon and safeguards legislated. This paper further highlights that there is a need for staff working within the monitoring framework to receive training on the principles and values underpinning the CRPD, including on the social model of disability (IAPT, 2012b; OCAPHR, 2014). This would aid the effective implementation of the CRPD more broadly, as well as the implementation of Article 16(3). Further, there is little information available about the everyday lives of persons with disabilities in Cyprus. There is a need for transparent information concerning the lives of persons with disabilities to be made publicly available and in accessible formats (CRPD, 2006, Arts 9, 31). This will aid not only the implementation of Article 16(3), but also that of the CRPD more broadly. The IAPT's practice of publishing individual reports about its visits on the OCAPHR website (OCAPHR, Undated) can be taken as a ‘best practice’ example by all bodies involved in the Article 16(3) CRPD monitoring framework.
8 Conclusion: challenges of implementing Article 16(3) CRPD for states parties and lessons from Cyprus
This paper has demonstrated that no legislative or policy measures have been taken towards the implementation of Article 16(3) CRPD in the context of intellectual disability in Cyprus. The particular articulation of Article 16 CRPD, ‘Freedom from all forms of exploitation, violence and abuse’, not found in other UN human rights law conventions, appears to pose a challenge for some states parties in understanding, interpreting and implementing the said provision. Cyprus is not alone in not immediately engaging with Article 16(3) CRPD (2006). The CRPD Committee, in its concluding observations for 2015 and 2016 alone, recommended that Canada, Chile, Guatemala and Uganda set up independent monitoring mechanisms to monitor facilities and programmes serving persons with disabilities (CRPD/C/CAN/CO/1; CRPD/C/CHL/CO/1; CRPD/C/GTM/CO/1; CRPD/C/UGA/CO/1). It also recommended that Italy should enact legislation to provide for independent monitoring mechanisms (CRPD/C/ITA/CO/1) and that Lithuania should improve the monitoring and inspection of social care homes and psychiatric institutions, so as to prevent violence and abuse against persons with disabilities (CRPD/C/LTU/CO/1). Further, the Committee recommended that Armenia and Moldova ensure the effective and independent monitoring of all residential institutions within a human rights framework (CRPD/C/ARM/CO/1; CRPD/C/MDA/CO/1). It also recommended that Serbia ensure the availability and accessibility of an effective independent monitoring mechanism (CRPD/C/SRB/CO/1) and that Bosnia and Herzegovina revise their monitoring and inspection of care homes and psychiatric institutions (CRPD/C/BIH/CO/1).
Unfortunately, it is not only states such as Cyprus that have not engaged with Article 16(3) CRPD, which face challenges in preventing instances of violence and abuse at facilities designed to serve persons with intellectual disabilities. Other states parties, such as the UK, which ratified the CRPD in 2009, and Hungary, which ratified the CRPD in 2007, have also had news reports of institutional abuse of persons with intellectual disabilities at a publicly funded, private residential hospital in England in 2011 (Winterbourne View) (BBC, 2011; Steinerte et al., Reference Steinerte, Murray and Laing2012) and at state-run institutions in Hungary in 2017 (BBC, 2017). The monitoring framework in the UK, in particular in England, differs from that in Cyprus. First, England has designated a body, the Care Quality Commission (CQC), as an independent monitoring authority under Article 16(3) CRPD (CRPD/C/GBR/1, 2013). The CQC is authorised to monitor, inspect and regulate services that provide health and social care in England, including for persons with disabilities (CRPD/C/GBR/1, 2013; CQC, 2018). In contrast to the existing three monitoring bodies in Cyprus, the CQC is one organisation. However, it is noted that, since the CQC's inception in 2009, it needed to merge three organisations,Footnote 8 which also had the implication that it had to adjust its monitoring with a new set of standards (Francis Inquiry, 2013; THF, 2018). Second, in England, the CQC is authorised to inspect publicly funded services and institutions (Laing, Reference Laing2017), including where these are privately run (Steinerte et al., Reference Steinerte, Murray and Laing2012), whereas, in Cyprus, the SWS is authorised to inspect private facilities, the Committee is authorised to inspect state facilities and the IAPT is authorised to visit private and state places of detention. Third, the CQC has the power to take enforcement action through removing a private facility's registration (Steinerte et al., Reference Steinerte, Murray and Laing2012), as does the SWS in Cyprus, which can revoke a private facility's licence to operate. This is in contrast with the Committee, which does not have the authority to take any effective enforcement action against state or private facilities, and neither does the IAPT, although it may submit recommendations to the responsible authorities. Fourth, the CQC (Laing, Reference Laing2017) and Cyprus's IAPT are both respectively designated as NPMs. Lastly, a common limitation to both states, is that none of their bodies appears to satisfy the independence criteria in view of the Paris Principles. This is as the CQC does not enjoy the financial and operational independence levels required by the Paris Principles (Laing, Reference Laing2017). Overall, it is unfortunately observed that, although England has designated the CQC, in contrast to Cyprus that has yet to designate an independent monitoring mechanism, it continues to face challenges in preventing instances of violence and abuse at facilities designed to serve persons with intellectual disabilities.
8.1 Lessons for states parties to the CRPD
Article 16(3) CRPD is a significant provision that requires immediate action by states parties. It is important that, when states parties, such as Cyprus, Armenia, Canada, Chile, Bosnia and Herzegovina, Italy, Guatemala, Lithuania, Moldova, Serbia and Uganda, are in the process of developing or revisiting their CRPD implementation strategies, the requisite attention is granted to the Article 16(3) independent monitoring obligation, in order to ensure that measures are taken towards its implementation, and that it is not sidelined or forgotten. Second, in designating or establishing a body to the task of independent monitoring authority, the Paris Principles should be used as guidance to ensure that the monitoring body meets with all the requirements required by Article 16(3) CRPD. Third, where there is more than one body designated with the role of independent monitoring authority under Article 16(3), processes for co-operation and co-ordination should be put in place forming part of the independent monitoring framework. Lastly, where a pre-CRPD body is designated with the responsibility for Article 16(3), it is critically important that the mandate and framework within which the body is to operate are situated within a CRPD human rights framework (and not that of a ‘traditional’ (pre-CRPD) human rights framework). The designation should also be accompanied by training for staff on the principles and values underpinning the CRPD human rights framework, so that the effective implementation of Article 16(3) CPRD is achieved.
