Criminal Defense Wiki - User contributions [en]

Identity Checks

2010-11-16T15:19:31Z

Cdavies: /* United States */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify his or her identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority.
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had a chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. Spain's Constitutional Court ratified the police's action as lawful. The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights, ''available at'' http://www.womenslinkworldwide.org/pdf_programs/prog_ge_acodi_legaldocs_complaint.pdf.</ref> The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring individuals to identify themselves by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check incident to a stop based on less than reasonable suspicion would be constitutionally permissible.

Several states, such as New York, appear to permit identity checks based upon on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-16T15:16:31Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify his or her identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority.
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had a chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. Spain's Constitutional Court ratified the police's action as lawful. The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights, ''available at'' http://www.womenslinkworldwide.org/pdf_programs/prog_ge_acodi_legaldocs_complaint.pdf.</ref> The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check incident to a stop based on less than reasonable suspicion would be constitutionally permissible.

Several states, such as New York, appear to permit identity checks based upon on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-16T15:15:22Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify his or her identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority.
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. Spain's Constitutional Court ratified the police's action as lawful. The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights, ''available at'' http://www.womenslinkworldwide.org/pdf_programs/prog_ge_acodi_legaldocs_complaint.pdf.</ref> The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check incident to a stop based on less than reasonable suspicion would be constitutionally permissible.

Several states, such as New York, appear to permit identity checks based upon on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-16T15:14:38Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify his or her identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. Spain's Constitutional Court ratified the police's action as lawful. The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights, ''available at'' http://www.womenslinkworldwide.org/pdf_programs/prog_ge_acodi_legaldocs_complaint.pdf.</ref> The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check incident to a stop based on less than reasonable suspicion would be constitutionally permissible.

Several states, such as New York, appear to permit identity checks based upon on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Standards for Conviction

2010-11-16T15:08:24Z

Cdavies: /* Criminal v. Civil Liability */

=Background=

In almost every country in the world a defendant is presumed innocent until they plead guilty or are proven guilty at a trial. What is the standard required to prove an individual guilty of a crime? The exact standard is sometimes difficult to define but countries generally use one of two [[Standards of Proof | standards]]: Proof Beyond a Reasonable Doubt or Preponderance of the Evidence.

Courts are often reluctant to define Proof Beyond a Reasonable Doubt as a percentage probability. A jury may be given specific instruction as to the precise meaning of the term in their jurisdiction. It is generally considered to be a very high standard but one that is theoretically achievable by the prosecution.

Presponderance of the Evidence is a standard easily defined as simply more probable than not.

=Criminal v. Civil Liability=
Both standards may exist in the same jurisdiction for different types of cases. For instance, in the United States, Proof Beyond a Reasonable Doubt is the standard for criminal conviction while Preponderance of the Evidence is used to determine liability for civil cases. Thus, it is possible that an individual aquitted of a crime can still be found liable in a civil case.

The famous case of O.J. Simpson provides an illustration: Mr. Simpson was accused of murdering his wife, Nicole Brown Simpson. A jury determined that Mr. Simpson was not guilty of the crime and that the prosecution had failed to prove its case beyond a reasonable doubt. However, a separate civil jury was convinced by a preponderance of the evidence that he was responsible for the murder of Nicole Brown Simpson and awarded her family $8.5 million in compensatory damages.

=Country Specific Applications=

==United States==
Proof Beyond a Reasonable Doubt is the standard required in the United States for conviction of a criminal charge. The standard is generally not quantifiable as a percentage probability. The exact formulation of reasonable doubt has never been determined.

Chief Justice Shaw of the Massachusetts Supreme Judicial Court made this observation about the reasonable doubt standard in 1850:

<Blockquote>"[W]hat is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt." <ref>Commonwealth v. Webster, 59 Mass. 295, 320 (1850)</ref> </blockquote>

In the U.S. Supreme Court case of Victor v. Nebraska <ref>Victor v. Nebraska, 511 U.S. 1 (1994)</ref>, the court held a similar jury instruction on reasonable doubt unconstitutional:

<blockquote>" `[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. '''It must be such doubt as would give rise to a grave uncertainty''', raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. '''It is an actual substantial doubt.''' It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a '''moral certainty'''.' " </blockquote>

The court held that the portions of the instruction in '''bold''' rendered it unconstitutional. The court has never fully approved an instruction.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-15T15:54:20Z

Cdavies: /* United States */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. Spain's Constitutional Court ratified the police's action as lawful. The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights, ''available at'' http://www.womenslinkworldwide.org/pdf_programs/prog_ge_acodi_legaldocs_complaint.pdf.</ref> The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check incident to a stop based on less than reasonable suspicion would be constitutionally permissible.

Several states, such as New York, appear to permit identity checks based upon on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-15T15:47:28Z

Cdavies: /* Spain */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. Spain's Constitutional Court ratified the police's action as lawful. The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights, ''available at'' http://www.womenslinkworldwide.org/pdf_programs/prog_ge_acodi_legaldocs_complaint.pdf.</ref> The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check incident to a stop based on less than reasonable suspicion would be constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-15T15:10:28Z

Cdavies: /* United States */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check incident to a stop based on less than reasonable suspicion would be constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-15T15:09:30Z

Cdavies: /* United States */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check incident to a stop based on less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-15T14:56:50Z

Cdavies: /* United States */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. A state's identification requirement must simply be reasonable, meaning that the State's interest must outweigh any intrusion against the individual, to be contstitutional. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-15T14:40:23Z

Cdavies: /* United States */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check.<ref>The court noted that in the ordinary course of an investigation "a police officer is free to ask a person for identification without implicating the Fourth Amendment.Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)</ref>. In the ''Hiibel'' case the Court did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Standards for Conviction

2010-11-15T12:58:10Z

Cdavies: /* United States */

=Background=

In almost every country in the world a defendant is presumed innocent until they plead guilty or are proven guilty at a trial. What is the standard required to prove an individual guilty of a crime? The exact standard is sometimes difficult to define but countries generally use one of two [[Standards of Proof | standards]]: Proof Beyond a Reasonable Doubt or Preponderance of the Evidence.

Courts are often reluctant to define Proof Beyond a Reasonable Doubt as a percentage probability. A jury may be given specific instruction as to the precise meaning of the term in their jurisdiction. It is generally considered to be a very high standard but one that is theoretically achievable by the prosecution.

Presponderance of the Evidence is a standard easily defined as simply more probable than not.

=Criminal v. Civil Liability=
Both standards may exist in the same jurisdiction for different types of cases. For instance, in the United States, Proof Beyond a Reasonable Doubt is the standard for criminal conviction while Preponderance of the Evidence is used to determine liability for civil cases. Thus, it is possible that an individual aquitted of a crime can still be found liable in a civil case.

The famous case of O.J. Simpson provides an illustration: Mr. Simpson was accused of murdering his wife, Nicole Brown Simpson. A jury determined that Mr. Simpson was not guilty of the crime and that the prosecution had failed to prove their case beyond a reasonable doubt. However, a separate civil jury was convinced by a preponderance of the evidence that he was responsible for the murder of Nicole Brown Simpson and awarded her family $8.5 million in compensatory damages.

=Country Specific Applications=

==United States==
Proof Beyond a Reasonable Doubt is the standard required in the United States for conviction of a criminal charge. The standard is generally not quantifiable as a percentage probability. The exact formulation of reasonable doubt has never been determined.

Chief Justice Shaw of the Massachusetts Supreme Judicial Court made this observation about the reasonable doubt standard in 1850:

<Blockquote>"[W]hat is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt." <ref>Commonwealth v. Webster, 59 Mass. 295, 320 (1850)</ref> </blockquote>

In the U.S. Supreme Court case of Victor v. Nebraska <ref>Victor v. Nebraska, 511 U.S. 1 (1994)</ref>, the court held a similar jury instruction on reasonable doubt unconstitutional:

<blockquote>" `[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. '''It must be such doubt as would give rise to a grave uncertainty''', raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. '''It is an actual substantial doubt.''' It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a '''moral certainty'''.' " </blockquote>

The court held that the portions of the instruction in '''bold''' rendered it unconstitutional. The court has never fully approved an instruction.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Standards for Conviction

2010-11-15T12:53:07Z

Cdavies: /* Criminal v. Civil Liability */

=Background=

In almost every country in the world a defendant is presumed innocent until they plead guilty or are proven guilty at a trial. What is the standard required to prove an individual guilty of a crime? The exact standard is sometimes difficult to define but countries generally use one of two [[Standards of Proof | standards]]: Proof Beyond a Reasonable Doubt or Preponderance of the Evidence.

Courts are often reluctant to define Proof Beyond a Reasonable Doubt as a percentage probability. A jury may be given specific instruction as to the precise meaning of the term in their jurisdiction. It is generally considered to be a very high standard but one that is theoretically achievable by the prosecution.

Presponderance of the Evidence is a standard easily defined as simply more probable than not.

=Criminal v. Civil Liability=
Both standards may exist in the same jurisdiction for different types of cases. For instance, in the United States, Proof Beyond a Reasonable Doubt is the standard for criminal conviction while Preponderance of the Evidence is used to determine liability for civil cases. Thus, it is possible that an individual aquitted of a crime can still be found liable in a civil case.

The famous case of O.J. Simpson provides an illustration: Mr. Simpson was accused of murdering his wife, Nicole Brown Simpson. A jury determined that Mr. Simpson was not guilty of the crime and that the prosecution had failed to prove their case beyond a reasonable doubt. However, a separate civil jury was convinced by a preponderance of the evidence that he was responsible for the murder of Nicole Brown Simpson and awarded her family $8.5 million in compensatory damages.

=Country Specific Applications=

==United States==
Proof Beyond a Reasonable Doubt is the standard required in the United States for conviction of a criminal charge. The standard is generally not quantifiable as a percentage probability. The exact formulation of reasonable doubt has never been determined.

Chief Justice Shaw of the Massachusetts Supreme Judicial Court made this observation about the reasonable doubt standard in 1850:

<Blockquote>"[W]hat is reasonable doubt? It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because every thing relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of allthe evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. The burden of proof is upon the prosecutor. All the presumptions of law independent of evidence are in favor of innocence; and every person is presumed to be innocent until he is proved guilty. If upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by an acquittal. For it is not sufficient to establish a probability, though a strong one arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary; but the evidence must establish the truth of the fact to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt." <ref>Commonwealth v. Webster, 59 Mass. 295, 320 (1850)</ref> </blockquote>

In the U.S. Supreme Court case of Victor v. Nebraska <ref>Victor v. Nebraska, 511 U.S. 1 (1994)</ref>, the court held a similar jury instruction on reasonable doubt unconstitutional:

<blockquote>" `[A reasonable doubt] is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. '''It must be such doubt as would give rise to a grave uncertainty''', raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. '''It is an actual substantial doubt.''' It is a doubt that a reasonable man can seriously entertain. What is required is not an absolute or mathematical certainty, but a '''moral certainty'''.' " </blockquote>

The court held that the portions of the instruction in '''bold''' rendered it unconstitutional. The court has never fully approved an instruction.

----
See [[Rights of the Accused]]
=Notes=
<references/>

Identity Checks

2010-11-15T10:54:27Z

Cdavies: /* United States */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref> the U.S. Supreme Court concluded that neither the Fourth nor the Fifth amendment prohibited a state from requiring an individual to identify themself by name during [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, he or she can simultaneously conduct an identity check. In the ''Hiibel'' case the Court did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity, <ref>[[People v. Debour, 40 N.Y.2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-12T16:01:08Z

Cdavies: /* Spain */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before he or she can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-12T15:45:33Z

Cdavies: /* Germany */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", Global Post, Jan. 11, 2010, http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-12T15:42:04Z

Cdavies: /* Germany */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish his or her identity may be detained no longer than is necessary to establish that identity.<ref>German Criminal Procedure Code 163c.</ref>

As in many countries, minorities (particularly Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims Call Mosque ID Checks "Humiliating", http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia.</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-12T15:22:19Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted in 2007 and 2008 spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations. Researchers concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref>

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish their identity may be detained no longer than is necessary to establish his identity.<ref>German Criminal Procedure Code 163c</ref>

As in many countries, minorities (and in particular, Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims call mosque ID checks "humiliating", http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-12T15:17:52Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study conducted concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref> Researchers spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations.

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish their identity may be detained no longer than is necessary to establish his identity.<ref>German Criminal Procedure Code 163c</ref>

As in many countries, minorities (and in particular, Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims call mosque ID checks "humiliating", http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-12T13:53:42Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code, Article 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code, Article 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained. The detention may not last longer than 4 hours, however, from the time that an identity check was initially made according to Article 78-2.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study by the French newspaper Le Monde concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref> Researchers spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations.

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish their identity may be detained no longer than is necessary to establish his identity.<ref>German Criminal Procedure Code 163c</ref>

As in many countries, minorities (and in particular, Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims call mosque ID checks "humiliating", http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-12T12:59:30Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered by a judicial authority
Furthermore, under French Criminal Procedure Code 78-3, an individual who refuses to identify themselves may be held by the police until their identity can be ascertained.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study by the French newspaper Le Monde concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref> Researchers spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations.

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish their identity may be detained no longer than is necessary to establish his identity.<ref>German Criminal Procedure Code 163c</ref>

As in many countries, minorities (and in particular, Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims call mosque ID checks "humiliating", http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-11T16:42:40Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered [by] a judicial authority
Furthermore, under French Criminal Procedure Code 78-3 an individual who refuses to identify themselves may be held by the police until their identity can be ascertained.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study by the French newspaper Le Monde concluded that Arab and Black men had chance of being aribtrarily stopped and asked for their identity card that was 7.8 times higher than that of Whites.<ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref> Researchers spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations.

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish their identity may be detained no longer than is necessary to establish his identity.<ref>German Criminal Procedure Code 163c</ref>

As in many countries, minorities (and in particular, Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims call mosque ID checks "humiliating", http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-11T16:31:46Z

Cdavies: /* France */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered [by] a judicial authority
Furthermore, under French Criminal Procedure Code 78-3 an individual who refuses to identify themselves may be held by the police until their identity can be ascertained.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study by the French newspaper Le Monde concluded that Arab and Black men had 7.8X chance higher than Whites when it came to being arbitrarily stopped and asked for their identity card. <ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref> Researchers spent several months observing and counting French officers conducting identity stops at Paris's Gare du Nord and Chatelet-les Halles train stations.

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish their identity may be detained no longer than is necessary to establish his identity.<ref>German Criminal Procedure Code 163c</ref>

As in many countries, minorities (and in particular, Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims call mosque ID checks "humiliating", http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

Identity Checks

2010-11-11T15:50:40Z

Cdavies: /* Background */

=Background=
May police officers demand that a citizen produce identification upon demand even if the officer has no cause to believe a crime has been committed or is afoot? In some countries, police have this right.
Courts will often state that the invasion of privacy is so small when an officer demands identification that no privacy rights are triggered at all. The law in this area continues to evolve as governments develop extensive identification requirements for their citizens.

While identity checks are legal in many countries, their validity is tainted by the widespread use of racial profiling. Defense Attorneys should be prepared to challenge any identification stop based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.<ref>Article 2, [[International Covenant on Civil and Political Rights]]</ref> The stop may be illegal under domestic or [[International Law]].
[[File:spectrumofstops.jpg]]

=County Specific Applications=
==France==
French Criminal Procedure Code 78-2 permits judicial police officers and their agents to ask any person to justify their identity by any means where one or more plausible reasons exist to suspect:
* that the person has committed or attempted to commit an offence;
* or that the person is preparing to commit a crime or a misdemeanor;
* or that the person is able to give information useful for an enquiry into a felony or misdemeanor;
* or the person is the object of inquiries ordered [by] a judicial authority
Furthermore, under French Criminal Procedure Code 78-3 an individual who refuses to identify themselves may be held by the police until their identity can be ascertained.
Critics of these provisions allege that identity checks are used by French Police to harass and intimidate minorities.<ref>Ghali Hassan, French Ghettos, Police Violence and Racism,
http://www.globalresearch.ca/index.php?context=va&aid=1214</ref>.

A study by the French newspaper Le Monde concluded that Arab and Black men had 7.8X chance higher than Whites when it came to being arbitrarily stopped and asked for their identity card. <ref> French Racist Discrimination, http://marcovilla.instablogs.com/entry/french-racist-discrimination/</ref> Researchers spent several months observing and counting French officers conducting identity stops at Paris's Gare du Norde and Chatelet-les Halles train stations.

==Germany==
German Criminal Procedure permits prosecutors and police officials to conduct identity checks on individuals suspected of offenses<ref>German Criminal Procedure Section163b(1)</ref> and permits officers to conduct identity checks on individuals who are not suspected of an offense if necessary to investigate a criminal offense.<ref>German Criminal Procedure Section163b(2)</ref> An individual who refuses to establish their identity may be detained no longer than is necessary to establish his identity.<ref>German Criminal Procedure Code 163c</ref>

As in many countries, minorities (and in particular, Muslims) accuse German police of using identity checks to intimidate immigrants. <ref>Jan Yager, German Muslims call mosque ID checks "humiliating", http://www.globalpost.com/dispatch/germany/100108/islam-terrorism-security-islamophobia</ref>.

==Spain==
In a case involving a police identity check allegedly based on race, the National Court of Spain concluded that the "social contract" requires citizens to disclose their identity to police officers and that the officer is not required to have any quantum of suspicion before they can execute the stop. This decision was later ratified by Spain's Constitutional Court.<ref> Rosalind Williams Leecraft v. Spain, Communication Submitted for Consideration under the First Optional Protocol to the International Covenant on Civil and Political Rights</ref> The case was later heard by the Office of the High Commissioner for Human Rights in Geneva, Switzerland. The committee found general identity checks to be legal but concluded that Leecraft's stop had been based on race.

==United States==
In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) <ref>[[Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)]]</ref>, the U.S. Supreme Court concluded that neither the fourth nor the fifth amendment prohibited a state from requiring an individual to identify themself by name during a [[Stops and Frisks | stops and frisks]]. The case concluded that when an officer has reasonable suspicion to stop an individual, they can simultaneously conduct an identity check. In this case they did not decide whether an identity check with less than reasonable suspicion would be Constitutionally permissible.

Several states, such as New York, appear to permit identity checks on less than reasonable suspicion. In New York, an officer need only have "articulable reason" for approaching an individual and asking for their identity <ref>[[People v. Debour, 40 NY2d 210 (New York 1976)]]</ref> although additional rationale may be needed if the officer's tone becomes aggressive.

----
See [[Rights of the Accused]]

=Notes=
<references/>

International Law

2010-10-20T14:27:55Z

Cdavies: /* Torture */

==Courts==
*[[International Court of Justice]] (The Hague, Netherlands)
**ICJ Rules of Court
*[[International Criminal Court]] (The Hague, Netherlands)
*[[International Criminal Tribunal for the Former Yugoslavia]] (The Hague, Netherlands)
*[[International Criminal Tribunal for Rwanda]] (Arusha, Tanzania)
*[[Special Court for Sierra Leone]] (Freetown, Sierra Leone)

==Treaties==
===Background===
Since the United Nations was founded in 1945, the various states have drafted several tools to facilitate international law. Several of those international tools are listed here, with a focus on criminal justice and prisoners' rights. Some of these tools are called "basic principals" while others are called "covenants". Generally speaking, principals are advisory, while covenants are binding on the states. The [[International Court of Justice]] provides remedies for violations of some of these covenants.

===Torture===

* [[Convention Against Torture]] and Other Cruel Inhuman or Degrading Treatment or Punishment
* [[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]
* [[Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]
* [[Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment]]

===Prisoners' Rights and Sentencing Standards===

* [[Basic Principles for the Treatment of Prisoners]]
* [[Standard Minimum Rules for Treatment of Prisoners]]
* [[United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)]]
* [[Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment]]

===Children's Rights===
* [[United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)]]
* [[United Nations Rules for the Protection of Juveniles Deprived of their Liberty]]
* [[Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)]]

===Other Important Treaties===
* [[Convention on the Prevention and Punishment of the Crime of Genocide]]
* [[International Covenant on Civil and Political Rights]]
* [[American Convention on Human Rights]]
* [[Rome Statute of the International Criminal Court]]
* [[Second Optional Protocol to the International Covenant on Civil and Political Rights]]
* [[Universal Declaration of Human Rights]]
* [[United Nations Basic Principles on the Independence of the Judiciary Power]]
* [[Convention for the Protection of Human Rights and Fundamental Freedoms]]
* [[United Nations Code of Conduct for Law Enforcement Officials]]
* [[Code of Conduct for Law Enforcement Officials]]
* [[Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power]]
* [[Basic Principles on the Role of Lawyers]]
* [[Guidelines on the Role of Prosecutors]]
* [[Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions]]
* [[International Covenant for the Protection of All Persons from Enforced Disappearance]]
* [[Basic Principles on the Use of Force and Firearms by Law Enforcement Officials]]
* [[Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care]]
* [[Common Article 3 of the four Geneva Conventions of 1949]]

International Law

2010-10-20T14:03:01Z

Cdavies: /* Torture */

==Courts==
*[[International Court of Justice]] (The Hague, Netherlands)
**ICJ Rules of Court
*[[International Criminal Court]] (The Hague, Netherlands)
*[[International Criminal Tribunal for the Former Yugoslavia]] (The Hague, Netherlands)
*[[International Criminal Tribunal for Rwanda]] (Arusha, Tanzania)
*[[Special Court for Sierra Leone]] (Freetown, Sierra Leone)

==Treaties==
===Background===
Since the United Nations was founded in 1945, the various states have drafted several tools to facilitate international law. Several of those international tools are listed here, with a focus on criminal justice and prisoners' rights. Some of these tools are called "basic principals" while others are called "covenants". Generally speaking, principals are advisory, while covenants are binding on the states. The [[International Court of Justice]] provides remedies for violations of some of these covenants.

===Torture===

* [[Convention Against Torture]] and Other Cruel Inhuman or Degrading Treatment or Punishment
* [[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]
* [[Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]
* [[Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment]]
* [[Common Article 3 of the 1949 Geneva Conventions]]

===Prisoners' Rights and Sentencing Standards===

* [[Basic Principles for the Treatment of Prisoners]]
* [[Standard Minimum Rules for Treatment of Prisoners]]
* [[United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)]]
* [[Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment]]

===Children's Rights===
* [[United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)]]
* [[United Nations Rules for the Protection of Juveniles Deprived of their Liberty]]
* [[Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)]]

===Other Important Treaties===
* [[Convention on the Prevention and Punishment of the Crime of Genocide]]
* [[International Covenant on Civil and Political Rights]]
* [[American Convention on Human Rights]]
* [[Rome Statute of the International Criminal Court]]
* [[Second Optional Protocol to the International Covenant on Civil and Political Rights]]
* [[Universal Declaration of Human Rights]]
* [[United Nations Basic Principles on the Independence of the Judiciary Power]]
* [[Convention for the Protection of Human Rights and Fundamental Freedoms]]
* [[United Nations Code of Conduct for Law Enforcement Officials]]
* [[Code of Conduct for Law Enforcement Officials]]
* [[Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power]]
* [[Basic Principles on the Role of Lawyers]]
* [[Guidelines on the Role of Prosecutors]]
* [[Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions]]
* [[International Covenant for the Protection of All Persons from Enforced Disappearance]]
* [[Basic Principles on the Use of Force and Firearms by Law Enforcement Officials]]
* [[Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care]]
* [[Common Article 3 of the four Geneva Conventions of 1949]]

International Law

2010-10-20T14:02:05Z

Cdavies: /* Torture */

==Courts==
*[[International Court of Justice]] (The Hague, Netherlands)
**ICJ Rules of Court
*[[International Criminal Court]] (The Hague, Netherlands)
*[[International Criminal Tribunal for the Former Yugoslavia]] (The Hague, Netherlands)
*[[International Criminal Tribunal for Rwanda]] (Arusha, Tanzania)
*[[Special Court for Sierra Leone]] (Freetown, Sierra Leone)

==Treaties==
===Background===
Since the United Nations was founded in 1945, the various states have drafted several tools to facilitate international law. Several of those international tools are listed here, with a focus on criminal justice and prisoners' rights. Some of these tools are called "basic principals" while others are called "covenants". Generally speaking, principals are advisory, while covenants are binding on the states. The [[International Court of Justice]] provides remedies for violations of some of these covenants.

===Torture===

* [[Convention Against Torture]] and Other Cruel Inhuman or Degrading Treatment or Punishment
* [[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]
* [[Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]
* [[Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment]]
* [[Common Article 3 of the 1949 Geneva Conventions]]

===Prisoners' Rights and Sentencing Standards===

* [[Basic Principles for the Treatment of Prisoners]]
* [[Standard Minimum Rules for Treatment of Prisoners]]
* [[United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)]]
* [[Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment]]

===Children's Rights===
* [[United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)]]
* [[United Nations Rules for the Protection of Juveniles Deprived of their Liberty]]
* [[Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)]]

===Other Important Treaties===
* [[Convention on the Prevention and Punishment of the Crime of Genocide]]
* [[International Covenant on Civil and Political Rights]]
* [[American Convention on Human Rights]]
* [[Rome Statute of the International Criminal Court]]
* [[Second Optional Protocol to the International Covenant on Civil and Political Rights]]
* [[Universal Declaration of Human Rights]]
* [[United Nations Basic Principles on the Independence of the Judiciary Power]]
* [[Convention for the Protection of Human Rights and Fundamental Freedoms]]
* [[United Nations Code of Conduct for Law Enforcement Officials]]
* [[Code of Conduct for Law Enforcement Officials]]
* [[Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power]]
* [[Basic Principles on the Role of Lawyers]]
* [[Guidelines on the Role of Prosecutors]]
* [[Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions]]
* [[International Covenant for the Protection of All Persons from Enforced Disappearance]]
* [[Basic Principles on the Use of Force and Firearms by Law Enforcement Officials]]
* [[Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care]]
* [[Common Article 3 of the four Geneva Conventions of 1949]]

Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

2010-10-19T14:57:22Z

Cdavies: /* Principle 15 */

'''Adopted by General Assembly resolution 46/119 of 17 December 1991'''

===Application===

These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth.

===Definitions===

In these Principles:

"Counsel" means a legal or other qualified representative;

"Independent authority" means a competent and independent authority prescribed by domestic law;

"Mental health care" includes analysis and diagnosis of a person's mental condition, and treatment, care and rehabilitation for a mental illness or suspected mental illness;

"Mental health facility" means any establishment, or any unit of an establishment, which as its primary function provides mental health care;

"Mental health practitioner" means a medical doctor, clinical psychologist, nurse, social worker or other appropriately trained and qualified person with specific skills relevant to mental health care;

"Patient" means a person receiving mental health care and includes all persons who are admitted to a mental health facility;

"Personal representative" means a person charged by law with the duty of representing a patient's interests in any specified respect or of exercising specified rights on the patient's behalf, and includes the parent or legal guardian of a minor unless otherwise provided by domestic law;

"The review body" means the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility.

===Principle 1===

'''Fundamental freedoms and basic rights'''

1. All persons have the right to the best available mental health care, which shall be part of the health and social care system.

2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.

3. All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.

4. There shall be no discrimination on the grounds of mental illness. "Discrimination" means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.

5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law. The person whose capacity is at issue shall be entitled to be represented by a counsel. If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it. The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest. Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law. The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.

7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest.

===Principle 2===

'''Protection of minors'''

Special care should be given within the purposes of these Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.

===Principle 3===

'''Life in the community'''

Every person with a mental illness shall have the right to live and work, as far as possible, in the community.

===Principle 4===

'''Determination of mental illness'''

1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.

3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness.

4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.

5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

===Principle 5===

'''Medical examination'''

No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law.

===Principle 6===

'''Confidentiality'''

The right of confidentiality of information concerning all persons to whom these Principles apply shall be respected.

===Principle 7===

'''Role of community and culture'''

1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.

2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her or the of his or her relatives or friends and shall have the right to return to the community as soon as possible.

3. Every patient shall have the right to treatment suited to his or her cultural background.

===Principle 8===

'''Standards of care'''

1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.

2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.

===Principle 9===

'''Treatment'''

1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

===Principle 10===

'''Medication'''

1. Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

===Principle 11===

'''Consent to treatment'''

1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

( a ) The diagnostic assessment;

( b ) The purpose, method, likely duration and expected benefit of the proposed treatment;

( c ) Alternative modes of treatment, including those less intrusive; and

( d ) Possible pain or discomfort, risks and side-effects of the proposed treatment.

3. A patient may request the presence of a person or persons of the patient's choosing during the procedure for granting consent.

4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 below. The consequences of refusing or stopping treatment must be explained to the patient.

5. A patient shall never be invited or induced to waive the right to informed consent. If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent.

6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied:

( a ) The patient is, at the relevant time, held as an involuntary patient;

( b ) An independent authority, having in its possession all relevant information, including the information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks the capacity to give or withhold informed consent to the proposed plan of treatment or, if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds such consent; and

( c ) The independent authority is satisfied that the proposed plan of treatment is in the best interest of the patient's health needs.

7. Paragraph 6 above does not apply to a patient with a personal representative empowered by law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14 and 15 below, treatment may be given to such a patient without his or her informed consent if the personal representative, having been given the information described in paragraph 2 above, consents on the patient's behalf.

8. Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to any patient without the patient's informed consent if a qualified mental health practitioner authorized by law determines that it is urgently necessary in order to prevent immediate or imminent harm to the patient or to other persons. Such treatment shall not be prolonged beyond the period that is strictly necessary for this purpose.

9. Where any treatment is authorized without the patient's informed consent, every effort shall nevertheless be made to inform the patient about the nature of the treatment and any possible alternatives and to involve the patient as far as practicable in the development of the treatment plan.

10. All treatment shall be immediately recorded in the patient's medical records, with an indication of whether involuntary or voluntary.

11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient's medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.

12. Sterilization shall never be carried out as a treatment for mental illness.

13. A major medical or surgical procedure may be carried out on a person with mental illness only where it is permitted by domestic law, where it is considered that it would best serve the health needs of the patient and where the patient gives informed consent, except that, where the patient is unable to give informed consent, the procedure shall be authorized only after independent review.

14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient.

15. Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose.

16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her.

===Principle 12===

'''Notice of rights'''

1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with these Principles and under domestic law, which information shall include an explanation of those rights and how to exercise them.

2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient's interests and willing to do so.

3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility.

===Principle 13===

'''Rights and conditions in mental health facilities'''

1. Every patient in a mental health facility shall, in particular, have the right to full respect for his or her:

( a ) Recognition everywhere as a person before the law;

( b ) Privacy;

( c ) Freedom of communication, which includes freedom to communicate with other persons in the facility; freedom to send and receive uncensored private communications; freedom to receive, in private, visits from a counsel or personal representative and, at all reasonable times, from other visitors; and freedom of access to postal and telephone services and to newspapers, radio and television;

( d ) Freedom of religion or belief.

2. The environment and living conditions in mental health facilities shall be as close as possible to those of the normal life of persons of similar age and in particular shall include:

( a ) Facilities for recreational and leisure activities;

( b ) Facilities for education;

( c ) Facilities to purchase or receive items for daily living, recreation and communication;

( d ) Facilities, and encouragement to use such facilities, for a patient's engagement in active occupation suited to his or her social and cultural background, and for appropriate vocational rehabilitation measures to promote reintegration in the community. These measures should include vocational guidance, vocational training and placement services to enable patients to secure or retain employment in the community.

3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.

4. The labour of a patient in a mental health facility shall not be exploited. Every such patient shall have the right to receive the same remuneration for any work which he or she does as would, according to domestic law or custom, be paid for such work to a non-patient. Every such patient shall, in any event, have the right to receive a fair share of any remuneration which is paid to the mental health facility for his or her work.

===Principle 14===

'''Resources for mental health facilities'''

1. A mental health facility shall have access to the same level of resources as any other health establishment, and in particular:

( a ) Qualified medical and other appropriate professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy;

( b ) Diagnostic and therapeutic equipment for the patient;

( c ) Appropriate professional care; and

( d ) Adequate, regular and comprehensive treatment, including supplies of medication.

2. Every mental health facility shall be inspected by the competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with these Principles.

===Principle 15===

'''Admission principles'''

1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission.

2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness.

3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

== Principle 16 ==

'''Involuntary admission'''

1. A person may ( a ) be admitted involuntarily to a mental health facility as a patient; or ( b ) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that that person has a mental illness and considers:

( a ) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

( b ) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

In the case referred to in subparagraph ( b ), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.

2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

== Principle 17 ==

'''Review body'''

1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.

== Principle 18 ==

Procedural safeguards

1. The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter. Where such services are necessary and the patient does not secure them, they shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others. As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any part of a document is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision whether the hearing or any part of it shall be in public or in private and may be publicly reported shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

8. The decision arising out of the hearing and the reasons for it shall be expressed in writing. Copies shall be given to the patient and his or her personal representative and counsel. In deciding whether the decision shall be published in whole or in part, full consideration shall be given to the patient's own wishes, to the need to respect his or her privacy and that of other persons, to the public interest in the open administration of justice and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

== Principle 19 ==

'''Access to information'''

1. A patient (which term in this Principle includes a former patient) shall be entitled to have access to the information concerning the patient in his or her health and personal records maintained by a mental health facility. This right may be subject to restrictions in order to prevent serious harm to the patient's health and avoid putting at risk the safety of others. As domestic law may provide, any such information not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any of the information is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and it shall be subject to judicial review.

2. Any written comments by the patient or the patient's personal representative or counsel shall, on request, be inserted in the patient's file.

== Principle 20 ==

'''Criminal offenders'''

1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

2. All such persons should receive the best available mental health care as provided in Principle 1. These Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.

3. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

4. Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11.

== Principle 21 ==

'''Complaints'''

Every patient and former patient shall have the right to make a complaint through procedures as specified by domestic law.

== Principle 22 ==

'''Monitoring and remedies'''

States shall ensure that appropriate mechanisms are in force to promote compliance with these Principles, for the inspection of mental health facilities, for the submission, investigation and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient.

== Principle 23 ==

'''Implementation'''

1. States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. States shall make these Principles widely known by appropriate and active means.

== Principle 24 ==

'''Scope of principles relating to mental health facilities'''

These Principles apply to all persons who are admitted to a mental health facility.

== Principle 25 ==

'''Saving of existing rights'''

There shall be no restriction upon or derogation from any existing rights of patients, including rights recognized in applicable international or domestic law, on the pretext that these Principles do not recognize such rights or that they recognize them to a lesser extent.

Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

2010-10-19T14:56:36Z

Cdavies: /* Principle 14 */

'''Adopted by General Assembly resolution 46/119 of 17 December 1991'''

===Application===

These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth.

===Definitions===

In these Principles:

"Counsel" means a legal or other qualified representative;

"Independent authority" means a competent and independent authority prescribed by domestic law;

"Mental health care" includes analysis and diagnosis of a person's mental condition, and treatment, care and rehabilitation for a mental illness or suspected mental illness;

"Mental health facility" means any establishment, or any unit of an establishment, which as its primary function provides mental health care;

"Mental health practitioner" means a medical doctor, clinical psychologist, nurse, social worker or other appropriately trained and qualified person with specific skills relevant to mental health care;

"Patient" means a person receiving mental health care and includes all persons who are admitted to a mental health facility;

"Personal representative" means a person charged by law with the duty of representing a patient's interests in any specified respect or of exercising specified rights on the patient's behalf, and includes the parent or legal guardian of a minor unless otherwise provided by domestic law;

"The review body" means the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility.

===Principle 1===

'''Fundamental freedoms and basic rights'''

1. All persons have the right to the best available mental health care, which shall be part of the health and social care system.

2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.

3. All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.

4. There shall be no discrimination on the grounds of mental illness. "Discrimination" means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.

5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law. The person whose capacity is at issue shall be entitled to be represented by a counsel. If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it. The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest. Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law. The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.

7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest.

===Principle 2===

'''Protection of minors'''

Special care should be given within the purposes of these Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.

===Principle 3===

'''Life in the community'''

Every person with a mental illness shall have the right to live and work, as far as possible, in the community.

===Principle 4===

'''Determination of mental illness'''

1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.

3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness.

4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.

5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

===Principle 5===

'''Medical examination'''

No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law.

===Principle 6===

'''Confidentiality'''

The right of confidentiality of information concerning all persons to whom these Principles apply shall be respected.

===Principle 7===

'''Role of community and culture'''

1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.

2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her or the of his or her relatives or friends and shall have the right to return to the community as soon as possible.

3. Every patient shall have the right to treatment suited to his or her cultural background.

===Principle 8===

'''Standards of care'''

1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.

2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.

===Principle 9===

'''Treatment'''

1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

===Principle 10===

'''Medication'''

1. Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

===Principle 11===

'''Consent to treatment'''

1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

( a ) The diagnostic assessment;

( b ) The purpose, method, likely duration and expected benefit of the proposed treatment;

( c ) Alternative modes of treatment, including those less intrusive; and

( d ) Possible pain or discomfort, risks and side-effects of the proposed treatment.

3. A patient may request the presence of a person or persons of the patient's choosing during the procedure for granting consent.

4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 below. The consequences of refusing or stopping treatment must be explained to the patient.

5. A patient shall never be invited or induced to waive the right to informed consent. If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent.

6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied:

( a ) The patient is, at the relevant time, held as an involuntary patient;

( b ) An independent authority, having in its possession all relevant information, including the information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks the capacity to give or withhold informed consent to the proposed plan of treatment or, if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds such consent; and

( c ) The independent authority is satisfied that the proposed plan of treatment is in the best interest of the patient's health needs.

7. Paragraph 6 above does not apply to a patient with a personal representative empowered by law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14 and 15 below, treatment may be given to such a patient without his or her informed consent if the personal representative, having been given the information described in paragraph 2 above, consents on the patient's behalf.

8. Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to any patient without the patient's informed consent if a qualified mental health practitioner authorized by law determines that it is urgently necessary in order to prevent immediate or imminent harm to the patient or to other persons. Such treatment shall not be prolonged beyond the period that is strictly necessary for this purpose.

9. Where any treatment is authorized without the patient's informed consent, every effort shall nevertheless be made to inform the patient about the nature of the treatment and any possible alternatives and to involve the patient as far as practicable in the development of the treatment plan.

10. All treatment shall be immediately recorded in the patient's medical records, with an indication of whether involuntary or voluntary.

11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient's medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.

12. Sterilization shall never be carried out as a treatment for mental illness.

13. A major medical or surgical procedure may be carried out on a person with mental illness only where it is permitted by domestic law, where it is considered that it would best serve the health needs of the patient and where the patient gives informed consent, except that, where the patient is unable to give informed consent, the procedure shall be authorized only after independent review.

14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient.

15. Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose.

16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her.

===Principle 12===

'''Notice of rights'''

1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with these Principles and under domestic law, which information shall include an explanation of those rights and how to exercise them.

2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient's interests and willing to do so.

3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility.

===Principle 13===

'''Rights and conditions in mental health facilities'''

1. Every patient in a mental health facility shall, in particular, have the right to full respect for his or her:

( a ) Recognition everywhere as a person before the law;

( b ) Privacy;

( c ) Freedom of communication, which includes freedom to communicate with other persons in the facility; freedom to send and receive uncensored private communications; freedom to receive, in private, visits from a counsel or personal representative and, at all reasonable times, from other visitors; and freedom of access to postal and telephone services and to newspapers, radio and television;

( d ) Freedom of religion or belief.

2. The environment and living conditions in mental health facilities shall be as close as possible to those of the normal life of persons of similar age and in particular shall include:

( a ) Facilities for recreational and leisure activities;

( b ) Facilities for education;

( c ) Facilities to purchase or receive items for daily living, recreation and communication;

( d ) Facilities, and encouragement to use such facilities, for a patient's engagement in active occupation suited to his or her social and cultural background, and for appropriate vocational rehabilitation measures to promote reintegration in the community. These measures should include vocational guidance, vocational training and placement services to enable patients to secure or retain employment in the community.

3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.

4. The labour of a patient in a mental health facility shall not be exploited. Every such patient shall have the right to receive the same remuneration for any work which he or she does as would, according to domestic law or custom, be paid for such work to a non-patient. Every such patient shall, in any event, have the right to receive a fair share of any remuneration which is paid to the mental health facility for his or her work.

===Principle 14===

'''Resources for mental health facilities'''

1. A mental health facility shall have access to the same level of resources as any other health establishment, and in particular:

( a ) Qualified medical and other appropriate professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy;

( b ) Diagnostic and therapeutic equipment for the patient;

( c ) Appropriate professional care; and

( d ) Adequate, regular and comprehensive treatment, including supplies of medication.

2. Every mental health facility shall be inspected by the competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with these Principles.

== Principle 15 ==

'''Admission principles'''

1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission.

2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness.

3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

== Principle 16 ==

'''Involuntary admission'''

1. A person may ( a ) be admitted involuntarily to a mental health facility as a patient; or ( b ) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that that person has a mental illness and considers:

( a ) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

( b ) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

In the case referred to in subparagraph ( b ), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.

2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

== Principle 17 ==

'''Review body'''

1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.

== Principle 18 ==

Procedural safeguards

1. The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter. Where such services are necessary and the patient does not secure them, they shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others. As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any part of a document is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision whether the hearing or any part of it shall be in public or in private and may be publicly reported shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

8. The decision arising out of the hearing and the reasons for it shall be expressed in writing. Copies shall be given to the patient and his or her personal representative and counsel. In deciding whether the decision shall be published in whole or in part, full consideration shall be given to the patient's own wishes, to the need to respect his or her privacy and that of other persons, to the public interest in the open administration of justice and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

== Principle 19 ==

'''Access to information'''

1. A patient (which term in this Principle includes a former patient) shall be entitled to have access to the information concerning the patient in his or her health and personal records maintained by a mental health facility. This right may be subject to restrictions in order to prevent serious harm to the patient's health and avoid putting at risk the safety of others. As domestic law may provide, any such information not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any of the information is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and it shall be subject to judicial review.

2. Any written comments by the patient or the patient's personal representative or counsel shall, on request, be inserted in the patient's file.

== Principle 20 ==

'''Criminal offenders'''

1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

2. All such persons should receive the best available mental health care as provided in Principle 1. These Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.

3. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

4. Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11.

== Principle 21 ==

'''Complaints'''

Every patient and former patient shall have the right to make a complaint through procedures as specified by domestic law.

== Principle 22 ==

'''Monitoring and remedies'''

States shall ensure that appropriate mechanisms are in force to promote compliance with these Principles, for the inspection of mental health facilities, for the submission, investigation and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient.

== Principle 23 ==

'''Implementation'''

1. States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. States shall make these Principles widely known by appropriate and active means.

== Principle 24 ==

'''Scope of principles relating to mental health facilities'''

These Principles apply to all persons who are admitted to a mental health facility.

== Principle 25 ==

'''Saving of existing rights'''

There shall be no restriction upon or derogation from any existing rights of patients, including rights recognized in applicable international or domestic law, on the pretext that these Principles do not recognize such rights or that they recognize them to a lesser extent.

Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

2010-10-19T14:55:44Z

Cdavies: /* Principle 13 */

'''Adopted by General Assembly resolution 46/119 of 17 December 1991'''

===Application===

These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth.

===Definitions===

In these Principles:

"Counsel" means a legal or other qualified representative;

"Independent authority" means a competent and independent authority prescribed by domestic law;

"Mental health care" includes analysis and diagnosis of a person's mental condition, and treatment, care and rehabilitation for a mental illness or suspected mental illness;

"Mental health facility" means any establishment, or any unit of an establishment, which as its primary function provides mental health care;

"Mental health practitioner" means a medical doctor, clinical psychologist, nurse, social worker or other appropriately trained and qualified person with specific skills relevant to mental health care;

"Patient" means a person receiving mental health care and includes all persons who are admitted to a mental health facility;

"Personal representative" means a person charged by law with the duty of representing a patient's interests in any specified respect or of exercising specified rights on the patient's behalf, and includes the parent or legal guardian of a minor unless otherwise provided by domestic law;

"The review body" means the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility.

===Principle 1===

'''Fundamental freedoms and basic rights'''

1. All persons have the right to the best available mental health care, which shall be part of the health and social care system.

2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.

3. All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.

4. There shall be no discrimination on the grounds of mental illness. "Discrimination" means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.

5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law. The person whose capacity is at issue shall be entitled to be represented by a counsel. If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it. The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest. Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law. The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.

7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest.

===Principle 2===

'''Protection of minors'''

Special care should be given within the purposes of these Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.

===Principle 3===

'''Life in the community'''

Every person with a mental illness shall have the right to live and work, as far as possible, in the community.

===Principle 4===

'''Determination of mental illness'''

1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.

3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness.

4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.

5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

===Principle 5===

'''Medical examination'''

No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law.

===Principle 6===

'''Confidentiality'''

The right of confidentiality of information concerning all persons to whom these Principles apply shall be respected.

===Principle 7===

'''Role of community and culture'''

1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.

2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her or the of his or her relatives or friends and shall have the right to return to the community as soon as possible.

3. Every patient shall have the right to treatment suited to his or her cultural background.

===Principle 8===

'''Standards of care'''

1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.

2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.

===Principle 9===

'''Treatment'''

1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

===Principle 10===

'''Medication'''

1. Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

===Principle 11===

'''Consent to treatment'''

1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

( a ) The diagnostic assessment;

( b ) The purpose, method, likely duration and expected benefit of the proposed treatment;

( c ) Alternative modes of treatment, including those less intrusive; and

( d ) Possible pain or discomfort, risks and side-effects of the proposed treatment.

3. A patient may request the presence of a person or persons of the patient's choosing during the procedure for granting consent.

4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 below. The consequences of refusing or stopping treatment must be explained to the patient.

5. A patient shall never be invited or induced to waive the right to informed consent. If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent.

6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied:

( a ) The patient is, at the relevant time, held as an involuntary patient;

( b ) An independent authority, having in its possession all relevant information, including the information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks the capacity to give or withhold informed consent to the proposed plan of treatment or, if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds such consent; and

( c ) The independent authority is satisfied that the proposed plan of treatment is in the best interest of the patient's health needs.

7. Paragraph 6 above does not apply to a patient with a personal representative empowered by law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14 and 15 below, treatment may be given to such a patient without his or her informed consent if the personal representative, having been given the information described in paragraph 2 above, consents on the patient's behalf.

8. Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to any patient without the patient's informed consent if a qualified mental health practitioner authorized by law determines that it is urgently necessary in order to prevent immediate or imminent harm to the patient or to other persons. Such treatment shall not be prolonged beyond the period that is strictly necessary for this purpose.

9. Where any treatment is authorized without the patient's informed consent, every effort shall nevertheless be made to inform the patient about the nature of the treatment and any possible alternatives and to involve the patient as far as practicable in the development of the treatment plan.

10. All treatment shall be immediately recorded in the patient's medical records, with an indication of whether involuntary or voluntary.

11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient's medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.

12. Sterilization shall never be carried out as a treatment for mental illness.

13. A major medical or surgical procedure may be carried out on a person with mental illness only where it is permitted by domestic law, where it is considered that it would best serve the health needs of the patient and where the patient gives informed consent, except that, where the patient is unable to give informed consent, the procedure shall be authorized only after independent review.

14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient.

15. Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose.

16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her.

===Principle 12===

'''Notice of rights'''

1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with these Principles and under domestic law, which information shall include an explanation of those rights and how to exercise them.

2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient's interests and willing to do so.

3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility.

===Principle 13===

'''Rights and conditions in mental health facilities'''

1. Every patient in a mental health facility shall, in particular, have the right to full respect for his or her:

( a ) Recognition everywhere as a person before the law;

( b ) Privacy;

( c ) Freedom of communication, which includes freedom to communicate with other persons in the facility; freedom to send and receive uncensored private communications; freedom to receive, in private, visits from a counsel or personal representative and, at all reasonable times, from other visitors; and freedom of access to postal and telephone services and to newspapers, radio and television;

( d ) Freedom of religion or belief.

2. The environment and living conditions in mental health facilities shall be as close as possible to those of the normal life of persons of similar age and in particular shall include:

( a ) Facilities for recreational and leisure activities;

( b ) Facilities for education;

( c ) Facilities to purchase or receive items for daily living, recreation and communication;

( d ) Facilities, and encouragement to use such facilities, for a patient's engagement in active occupation suited to his or her social and cultural background, and for appropriate vocational rehabilitation measures to promote reintegration in the community. These measures should include vocational guidance, vocational training and placement services to enable patients to secure or retain employment in the community.

3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.

4. The labour of a patient in a mental health facility shall not be exploited. Every such patient shall have the right to receive the same remuneration for any work which he or she does as would, according to domestic law or custom, be paid for such work to a non-patient. Every such patient shall, in any event, have the right to receive a fair share of any remuneration which is paid to the mental health facility for his or her work.

== Principle 14 ==

'''Resources for mental health facilities'''

1. A mental health facility shall have access to the same level of resources as any other health establishment, and in particular:

( a ) Qualified medical and other appropriate professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy;

( b ) Diagnostic and therapeutic equipment for the patient;

( c ) Appropriate professional care; and

( d ) Adequate, regular and comprehensive treatment, including supplies of medication.

2. Every mental health facility shall be inspected by the competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with these Principles.

== Principle 15 ==

'''Admission principles'''

1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission.

2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness.

3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

== Principle 16 ==

'''Involuntary admission'''

1. A person may ( a ) be admitted involuntarily to a mental health facility as a patient; or ( b ) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that that person has a mental illness and considers:

( a ) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

( b ) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

In the case referred to in subparagraph ( b ), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.

2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

== Principle 17 ==

'''Review body'''

1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.

== Principle 18 ==

Procedural safeguards

1. The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter. Where such services are necessary and the patient does not secure them, they shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others. As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any part of a document is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision whether the hearing or any part of it shall be in public or in private and may be publicly reported shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

8. The decision arising out of the hearing and the reasons for it shall be expressed in writing. Copies shall be given to the patient and his or her personal representative and counsel. In deciding whether the decision shall be published in whole or in part, full consideration shall be given to the patient's own wishes, to the need to respect his or her privacy and that of other persons, to the public interest in the open administration of justice and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

== Principle 19 ==

'''Access to information'''

1. A patient (which term in this Principle includes a former patient) shall be entitled to have access to the information concerning the patient in his or her health and personal records maintained by a mental health facility. This right may be subject to restrictions in order to prevent serious harm to the patient's health and avoid putting at risk the safety of others. As domestic law may provide, any such information not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any of the information is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and it shall be subject to judicial review.

2. Any written comments by the patient or the patient's personal representative or counsel shall, on request, be inserted in the patient's file.

== Principle 20 ==

'''Criminal offenders'''

1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

2. All such persons should receive the best available mental health care as provided in Principle 1. These Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.

3. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

4. Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11.

== Principle 21 ==

'''Complaints'''

Every patient and former patient shall have the right to make a complaint through procedures as specified by domestic law.

== Principle 22 ==

'''Monitoring and remedies'''

States shall ensure that appropriate mechanisms are in force to promote compliance with these Principles, for the inspection of mental health facilities, for the submission, investigation and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient.

== Principle 23 ==

'''Implementation'''

1. States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. States shall make these Principles widely known by appropriate and active means.

== Principle 24 ==

'''Scope of principles relating to mental health facilities'''

These Principles apply to all persons who are admitted to a mental health facility.

== Principle 25 ==

'''Saving of existing rights'''

There shall be no restriction upon or derogation from any existing rights of patients, including rights recognized in applicable international or domestic law, on the pretext that these Principles do not recognize such rights or that they recognize them to a lesser extent.

Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

2010-10-19T14:55:27Z

Cdavies: /* Principle 12 */

'''Adopted by General Assembly resolution 46/119 of 17 December 1991'''

===Application===

These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth.

===Definitions===

In these Principles:

"Counsel" means a legal or other qualified representative;

"Independent authority" means a competent and independent authority prescribed by domestic law;

"Mental health care" includes analysis and diagnosis of a person's mental condition, and treatment, care and rehabilitation for a mental illness or suspected mental illness;

"Mental health facility" means any establishment, or any unit of an establishment, which as its primary function provides mental health care;

"Mental health practitioner" means a medical doctor, clinical psychologist, nurse, social worker or other appropriately trained and qualified person with specific skills relevant to mental health care;

"Patient" means a person receiving mental health care and includes all persons who are admitted to a mental health facility;

"Personal representative" means a person charged by law with the duty of representing a patient's interests in any specified respect or of exercising specified rights on the patient's behalf, and includes the parent or legal guardian of a minor unless otherwise provided by domestic law;

"The review body" means the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility.

===Principle 1===

'''Fundamental freedoms and basic rights'''

1. All persons have the right to the best available mental health care, which shall be part of the health and social care system.

2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.

3. All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.

4. There shall be no discrimination on the grounds of mental illness. "Discrimination" means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.

5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law. The person whose capacity is at issue shall be entitled to be represented by a counsel. If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it. The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest. Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law. The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.

7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest.

===Principle 2===

'''Protection of minors'''

Special care should be given within the purposes of these Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.

===Principle 3===

'''Life in the community'''

Every person with a mental illness shall have the right to live and work, as far as possible, in the community.

===Principle 4===

'''Determination of mental illness'''

1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.

3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness.

4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.

5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

===Principle 5===

'''Medical examination'''

No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law.

===Principle 6===

'''Confidentiality'''

The right of confidentiality of information concerning all persons to whom these Principles apply shall be respected.

===Principle 7===

'''Role of community and culture'''

1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.

2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her or the of his or her relatives or friends and shall have the right to return to the community as soon as possible.

3. Every patient shall have the right to treatment suited to his or her cultural background.

===Principle 8===

'''Standards of care'''

1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.

2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.

===Principle 9===

'''Treatment'''

1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

===Principle 10===

'''Medication'''

1. Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

===Principle 11===

'''Consent to treatment'''

1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

( a ) The diagnostic assessment;

( b ) The purpose, method, likely duration and expected benefit of the proposed treatment;

( c ) Alternative modes of treatment, including those less intrusive; and

( d ) Possible pain or discomfort, risks and side-effects of the proposed treatment.

3. A patient may request the presence of a person or persons of the patient's choosing during the procedure for granting consent.

4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 below. The consequences of refusing or stopping treatment must be explained to the patient.

5. A patient shall never be invited or induced to waive the right to informed consent. If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent.

6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied:

( a ) The patient is, at the relevant time, held as an involuntary patient;

( b ) An independent authority, having in its possession all relevant information, including the information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks the capacity to give or withhold informed consent to the proposed plan of treatment or, if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds such consent; and

( c ) The independent authority is satisfied that the proposed plan of treatment is in the best interest of the patient's health needs.

7. Paragraph 6 above does not apply to a patient with a personal representative empowered by law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14 and 15 below, treatment may be given to such a patient without his or her informed consent if the personal representative, having been given the information described in paragraph 2 above, consents on the patient's behalf.

8. Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to any patient without the patient's informed consent if a qualified mental health practitioner authorized by law determines that it is urgently necessary in order to prevent immediate or imminent harm to the patient or to other persons. Such treatment shall not be prolonged beyond the period that is strictly necessary for this purpose.

9. Where any treatment is authorized without the patient's informed consent, every effort shall nevertheless be made to inform the patient about the nature of the treatment and any possible alternatives and to involve the patient as far as practicable in the development of the treatment plan.

10. All treatment shall be immediately recorded in the patient's medical records, with an indication of whether involuntary or voluntary.

11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient's medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.

12. Sterilization shall never be carried out as a treatment for mental illness.

13. A major medical or surgical procedure may be carried out on a person with mental illness only where it is permitted by domestic law, where it is considered that it would best serve the health needs of the patient and where the patient gives informed consent, except that, where the patient is unable to give informed consent, the procedure shall be authorized only after independent review.

14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient.

15. Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose.

16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her.

===Principle 12===

'''Notice of rights'''

1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with these Principles and under domestic law, which information shall include an explanation of those rights and how to exercise them.

2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient's interests and willing to do so.

3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility.

== Principle 13 ==

'''Rights and conditions in mental health facilities'''

1. Every patient in a mental health facility shall, in particular, have the right to full respect for his or her:

( a ) Recognition everywhere as a person before the law;

( b ) Privacy;

( c ) Freedom of communication, which includes freedom to communicate with other persons in the facility; freedom to send and receive uncensored private communications; freedom to receive, in private, visits from a counsel or personal representative and, at all reasonable times, from other visitors; and freedom of access to postal and telephone services and to newspapers, radio and television;

( d ) Freedom of religion or belief.

2. The environment and living conditions in mental health facilities shall be as close as possible to those of the normal life of persons of similar age and in particular shall include:

( a ) Facilities for recreational and leisure activities;

( b ) Facilities for education;

( c ) Facilities to purchase or receive items for daily living, recreation and communication;

( d ) Facilities, and encouragement to use such facilities, for a patient's engagement in active occupation suited to his or her social and cultural background, and for appropriate vocational rehabilitation measures to promote reintegration in the community. These measures should include vocational guidance, vocational training and placement services to enable patients to secure or retain employment in the community.

3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.

4. The labour of a patient in a mental health facility shall not be exploited. Every such patient shall have the right to receive the same remuneration for any work which he or she does as would, according to domestic law or custom, be paid for such work to a non-patient. Every such patient shall, in any event, have the right to receive a fair share of any remuneration which is paid to the mental health facility for his or her work.

== Principle 14 ==

'''Resources for mental health facilities'''

1. A mental health facility shall have access to the same level of resources as any other health establishment, and in particular:

( a ) Qualified medical and other appropriate professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy;

( b ) Diagnostic and therapeutic equipment for the patient;

( c ) Appropriate professional care; and

( d ) Adequate, regular and comprehensive treatment, including supplies of medication.

2. Every mental health facility shall be inspected by the competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with these Principles.

== Principle 15 ==

'''Admission principles'''

1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission.

2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness.

3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

== Principle 16 ==

'''Involuntary admission'''

1. A person may ( a ) be admitted involuntarily to a mental health facility as a patient; or ( b ) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that that person has a mental illness and considers:

( a ) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

( b ) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

In the case referred to in subparagraph ( b ), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.

2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

== Principle 17 ==

'''Review body'''

1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.

== Principle 18 ==

Procedural safeguards

1. The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter. Where such services are necessary and the patient does not secure them, they shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others. As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any part of a document is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision whether the hearing or any part of it shall be in public or in private and may be publicly reported shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

8. The decision arising out of the hearing and the reasons for it shall be expressed in writing. Copies shall be given to the patient and his or her personal representative and counsel. In deciding whether the decision shall be published in whole or in part, full consideration shall be given to the patient's own wishes, to the need to respect his or her privacy and that of other persons, to the public interest in the open administration of justice and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

== Principle 19 ==

'''Access to information'''

1. A patient (which term in this Principle includes a former patient) shall be entitled to have access to the information concerning the patient in his or her health and personal records maintained by a mental health facility. This right may be subject to restrictions in order to prevent serious harm to the patient's health and avoid putting at risk the safety of others. As domestic law may provide, any such information not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any of the information is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and it shall be subject to judicial review.

2. Any written comments by the patient or the patient's personal representative or counsel shall, on request, be inserted in the patient's file.

== Principle 20 ==

'''Criminal offenders'''

1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

2. All such persons should receive the best available mental health care as provided in Principle 1. These Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.

3. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

4. Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11.

== Principle 21 ==

'''Complaints'''

Every patient and former patient shall have the right to make a complaint through procedures as specified by domestic law.

== Principle 22 ==

'''Monitoring and remedies'''

States shall ensure that appropriate mechanisms are in force to promote compliance with these Principles, for the inspection of mental health facilities, for the submission, investigation and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient.

== Principle 23 ==

'''Implementation'''

1. States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. States shall make these Principles widely known by appropriate and active means.

== Principle 24 ==

'''Scope of principles relating to mental health facilities'''

These Principles apply to all persons who are admitted to a mental health facility.

== Principle 25 ==

'''Saving of existing rights'''

There shall be no restriction upon or derogation from any existing rights of patients, including rights recognized in applicable international or domestic law, on the pretext that these Principles do not recognize such rights or that they recognize them to a lesser extent.

Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

2010-10-19T14:55:03Z

Cdavies: /* Principle 11 */

'''Adopted by General Assembly resolution 46/119 of 17 December 1991'''

===Application===

These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth.

===Definitions===

In these Principles:

"Counsel" means a legal or other qualified representative;

"Independent authority" means a competent and independent authority prescribed by domestic law;

"Mental health care" includes analysis and diagnosis of a person's mental condition, and treatment, care and rehabilitation for a mental illness or suspected mental illness;

"Mental health facility" means any establishment, or any unit of an establishment, which as its primary function provides mental health care;

"Mental health practitioner" means a medical doctor, clinical psychologist, nurse, social worker or other appropriately trained and qualified person with specific skills relevant to mental health care;

"Patient" means a person receiving mental health care and includes all persons who are admitted to a mental health facility;

"Personal representative" means a person charged by law with the duty of representing a patient's interests in any specified respect or of exercising specified rights on the patient's behalf, and includes the parent or legal guardian of a minor unless otherwise provided by domestic law;

"The review body" means the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility.

===Principle 1===

'''Fundamental freedoms and basic rights'''

1. All persons have the right to the best available mental health care, which shall be part of the health and social care system.

2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.

3. All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.

4. There shall be no discrimination on the grounds of mental illness. "Discrimination" means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.

5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law. The person whose capacity is at issue shall be entitled to be represented by a counsel. If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it. The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest. Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law. The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.

7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest.

===Principle 2===

'''Protection of minors'''

Special care should be given within the purposes of these Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.

===Principle 3===

'''Life in the community'''

Every person with a mental illness shall have the right to live and work, as far as possible, in the community.

===Principle 4===

'''Determination of mental illness'''

1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.

3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness.

4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.

5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

===Principle 5===

'''Medical examination'''

No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law.

===Principle 6===

'''Confidentiality'''

The right of confidentiality of information concerning all persons to whom these Principles apply shall be respected.

===Principle 7===

'''Role of community and culture'''

1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.

2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her or the of his or her relatives or friends and shall have the right to return to the community as soon as possible.

3. Every patient shall have the right to treatment suited to his or her cultural background.

===Principle 8===

'''Standards of care'''

1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.

2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.

===Principle 9===

'''Treatment'''

1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

===Principle 10===

'''Medication'''

1. Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

===Principle 11===

'''Consent to treatment'''

1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

( a ) The diagnostic assessment;

( b ) The purpose, method, likely duration and expected benefit of the proposed treatment;

( c ) Alternative modes of treatment, including those less intrusive; and

( d ) Possible pain or discomfort, risks and side-effects of the proposed treatment.

3. A patient may request the presence of a person or persons of the patient's choosing during the procedure for granting consent.

4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 below. The consequences of refusing or stopping treatment must be explained to the patient.

5. A patient shall never be invited or induced to waive the right to informed consent. If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent.

6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied:

( a ) The patient is, at the relevant time, held as an involuntary patient;

( b ) An independent authority, having in its possession all relevant information, including the information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks the capacity to give or withhold informed consent to the proposed plan of treatment or, if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds such consent; and

( c ) The independent authority is satisfied that the proposed plan of treatment is in the best interest of the patient's health needs.

7. Paragraph 6 above does not apply to a patient with a personal representative empowered by law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14 and 15 below, treatment may be given to such a patient without his or her informed consent if the personal representative, having been given the information described in paragraph 2 above, consents on the patient's behalf.

8. Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to any patient without the patient's informed consent if a qualified mental health practitioner authorized by law determines that it is urgently necessary in order to prevent immediate or imminent harm to the patient or to other persons. Such treatment shall not be prolonged beyond the period that is strictly necessary for this purpose.

9. Where any treatment is authorized without the patient's informed consent, every effort shall nevertheless be made to inform the patient about the nature of the treatment and any possible alternatives and to involve the patient as far as practicable in the development of the treatment plan.

10. All treatment shall be immediately recorded in the patient's medical records, with an indication of whether involuntary or voluntary.

11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient's medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.

12. Sterilization shall never be carried out as a treatment for mental illness.

13. A major medical or surgical procedure may be carried out on a person with mental illness only where it is permitted by domestic law, where it is considered that it would best serve the health needs of the patient and where the patient gives informed consent, except that, where the patient is unable to give informed consent, the procedure shall be authorized only after independent review.

14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient.

15. Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose.

16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her.

== Principle 12 ==

'''Notice of rights'''

1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with these Principles and under domestic law, which information shall include an explanation of those rights and how to exercise them.

2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient's interests and willing to do so.

3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility.

== Principle 13 ==

'''Rights and conditions in mental health facilities'''

1. Every patient in a mental health facility shall, in particular, have the right to full respect for his or her:

( a ) Recognition everywhere as a person before the law;

( b ) Privacy;

( c ) Freedom of communication, which includes freedom to communicate with other persons in the facility; freedom to send and receive uncensored private communications; freedom to receive, in private, visits from a counsel or personal representative and, at all reasonable times, from other visitors; and freedom of access to postal and telephone services and to newspapers, radio and television;

( d ) Freedom of religion or belief.

2. The environment and living conditions in mental health facilities shall be as close as possible to those of the normal life of persons of similar age and in particular shall include:

( a ) Facilities for recreational and leisure activities;

( b ) Facilities for education;

( c ) Facilities to purchase or receive items for daily living, recreation and communication;

( d ) Facilities, and encouragement to use such facilities, for a patient's engagement in active occupation suited to his or her social and cultural background, and for appropriate vocational rehabilitation measures to promote reintegration in the community. These measures should include vocational guidance, vocational training and placement services to enable patients to secure or retain employment in the community.

3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.

4. The labour of a patient in a mental health facility shall not be exploited. Every such patient shall have the right to receive the same remuneration for any work which he or she does as would, according to domestic law or custom, be paid for such work to a non-patient. Every such patient shall, in any event, have the right to receive a fair share of any remuneration which is paid to the mental health facility for his or her work.

== Principle 14 ==

'''Resources for mental health facilities'''

1. A mental health facility shall have access to the same level of resources as any other health establishment, and in particular:

( a ) Qualified medical and other appropriate professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy;

( b ) Diagnostic and therapeutic equipment for the patient;

( c ) Appropriate professional care; and

( d ) Adequate, regular and comprehensive treatment, including supplies of medication.

2. Every mental health facility shall be inspected by the competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with these Principles.

== Principle 15 ==

'''Admission principles'''

1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission.

2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness.

3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

== Principle 16 ==

'''Involuntary admission'''

1. A person may ( a ) be admitted involuntarily to a mental health facility as a patient; or ( b ) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that that person has a mental illness and considers:

( a ) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

( b ) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

In the case referred to in subparagraph ( b ), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.

2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

== Principle 17 ==

'''Review body'''

1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.

== Principle 18 ==

Procedural safeguards

1. The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter. Where such services are necessary and the patient does not secure them, they shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others. As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any part of a document is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision whether the hearing or any part of it shall be in public or in private and may be publicly reported shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

8. The decision arising out of the hearing and the reasons for it shall be expressed in writing. Copies shall be given to the patient and his or her personal representative and counsel. In deciding whether the decision shall be published in whole or in part, full consideration shall be given to the patient's own wishes, to the need to respect his or her privacy and that of other persons, to the public interest in the open administration of justice and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

== Principle 19 ==

'''Access to information'''

1. A patient (which term in this Principle includes a former patient) shall be entitled to have access to the information concerning the patient in his or her health and personal records maintained by a mental health facility. This right may be subject to restrictions in order to prevent serious harm to the patient's health and avoid putting at risk the safety of others. As domestic law may provide, any such information not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any of the information is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and it shall be subject to judicial review.

2. Any written comments by the patient or the patient's personal representative or counsel shall, on request, be inserted in the patient's file.

== Principle 20 ==

'''Criminal offenders'''

1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

2. All such persons should receive the best available mental health care as provided in Principle 1. These Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.

3. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

4. Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11.

== Principle 21 ==

'''Complaints'''

Every patient and former patient shall have the right to make a complaint through procedures as specified by domestic law.

== Principle 22 ==

'''Monitoring and remedies'''

States shall ensure that appropriate mechanisms are in force to promote compliance with these Principles, for the inspection of mental health facilities, for the submission, investigation and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient.

== Principle 23 ==

'''Implementation'''

1. States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. States shall make these Principles widely known by appropriate and active means.

== Principle 24 ==

'''Scope of principles relating to mental health facilities'''

These Principles apply to all persons who are admitted to a mental health facility.

== Principle 25 ==

'''Saving of existing rights'''

There shall be no restriction upon or derogation from any existing rights of patients, including rights recognized in applicable international or domestic law, on the pretext that these Principles do not recognize such rights or that they recognize them to a lesser extent.

Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

2010-10-19T14:53:41Z

Cdavies: /* Principle 10 */

'''Adopted by General Assembly resolution 46/119 of 17 December 1991'''

===Application===

These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth.

===Definitions===

In these Principles:

"Counsel" means a legal or other qualified representative;

"Independent authority" means a competent and independent authority prescribed by domestic law;

"Mental health care" includes analysis and diagnosis of a person's mental condition, and treatment, care and rehabilitation for a mental illness or suspected mental illness;

"Mental health facility" means any establishment, or any unit of an establishment, which as its primary function provides mental health care;

"Mental health practitioner" means a medical doctor, clinical psychologist, nurse, social worker or other appropriately trained and qualified person with specific skills relevant to mental health care;

"Patient" means a person receiving mental health care and includes all persons who are admitted to a mental health facility;

"Personal representative" means a person charged by law with the duty of representing a patient's interests in any specified respect or of exercising specified rights on the patient's behalf, and includes the parent or legal guardian of a minor unless otherwise provided by domestic law;

"The review body" means the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility.

===Principle 1===

'''Fundamental freedoms and basic rights'''

1. All persons have the right to the best available mental health care, which shall be part of the health and social care system.

2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.

3. All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.

4. There shall be no discrimination on the grounds of mental illness. "Discrimination" means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.

5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law. The person whose capacity is at issue shall be entitled to be represented by a counsel. If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it. The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest. Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law. The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.

7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest.

===Principle 2===

'''Protection of minors'''

Special care should be given within the purposes of these Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.

===Principle 3===

'''Life in the community'''

Every person with a mental illness shall have the right to live and work, as far as possible, in the community.

===Principle 4===

'''Determination of mental illness'''

1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.

3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness.

4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.

5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

===Principle 5===

'''Medical examination'''

No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law.

===Principle 6===

'''Confidentiality'''

The right of confidentiality of information concerning all persons to whom these Principles apply shall be respected.

===Principle 7===

'''Role of community and culture'''

1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.

2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her or the of his or her relatives or friends and shall have the right to return to the community as soon as possible.

3. Every patient shall have the right to treatment suited to his or her cultural background.

===Principle 8===

'''Standards of care'''

1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.

2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.

===Principle 9===

'''Treatment'''

1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

===Principle 10===

'''Medication'''

1. Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

== Principle 11 ==

'''Consent to treatment'''

1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

( a ) The diagnostic assessment;

( b ) The purpose, method, likely duration and expected benefit of the proposed treatment;

( c ) Alternative modes of treatment, including those less intrusive; and

( d ) Possible pain or discomfort, risks and side-effects of the proposed treatment.

3. A patient may request the presence of a person or persons of the patient's choosing during the procedure for granting consent.

4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 below. The consequences of refusing or stopping treatment must be explained to the patient.

5. A patient shall never be invited or induced to waive the right to informed consent. If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent.

6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied:

( a ) The patient is, at the relevant time, held as an involuntary patient;

( b ) An independent authority, having in its possession all relevant information, including the information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks the capacity to give or withhold informed consent to the proposed plan of treatment or, if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds such consent; and

( c ) The independent authority is satisfied that the proposed plan of treatment is in the best interest of the patient's health needs.

7. Paragraph 6 above does not apply to a patient with a personal representative empowered by law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14 and 15 below, treatment may be given to such a patient without his or her informed consent if the personal representative, having been given the information described in paragraph 2 above, consents on the patient's behalf.

8. Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to any patient without the patient's informed consent if a qualified mental health practitioner authorized by law determines that it is urgently necessary in order to prevent immediate or imminent harm to the patient or to other persons. Such treatment shall not be prolonged beyond the period that is strictly necessary for this purpose.

9. Where any treatment is authorized without the patient's informed consent, every effort shall nevertheless be made to inform the patient about the nature of the treatment and any possible alternatives and to involve the patient as far as practicable in the development of the treatment plan.

10. All treatment shall be immediately recorded in the patient's medical records, with an indication of whether involuntary or voluntary.

11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient's medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.

12. Sterilization shall never be carried out as a treatment for mental illness.

13. A major medical or surgical procedure may be carried out on a person with mental illness only where it is permitted by domestic law, where it is considered that it would best serve the health needs of the patient and where the patient gives informed consent, except that, where the patient is unable to give informed consent, the procedure shall be authorized only after independent review.

14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient.

15. Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose.

16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her.

== Principle 12 ==

'''Notice of rights'''

1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with these Principles and under domestic law, which information shall include an explanation of those rights and how to exercise them.

2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient's interests and willing to do so.

3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility.

== Principle 13 ==

'''Rights and conditions in mental health facilities'''

1. Every patient in a mental health facility shall, in particular, have the right to full respect for his or her:

( a ) Recognition everywhere as a person before the law;

( b ) Privacy;

( c ) Freedom of communication, which includes freedom to communicate with other persons in the facility; freedom to send and receive uncensored private communications; freedom to receive, in private, visits from a counsel or personal representative and, at all reasonable times, from other visitors; and freedom of access to postal and telephone services and to newspapers, radio and television;

( d ) Freedom of religion or belief.

2. The environment and living conditions in mental health facilities shall be as close as possible to those of the normal life of persons of similar age and in particular shall include:

( a ) Facilities for recreational and leisure activities;

( b ) Facilities for education;

( c ) Facilities to purchase or receive items for daily living, recreation and communication;

( d ) Facilities, and encouragement to use such facilities, for a patient's engagement in active occupation suited to his or her social and cultural background, and for appropriate vocational rehabilitation measures to promote reintegration in the community. These measures should include vocational guidance, vocational training and placement services to enable patients to secure or retain employment in the community.

3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.

4. The labour of a patient in a mental health facility shall not be exploited. Every such patient shall have the right to receive the same remuneration for any work which he or she does as would, according to domestic law or custom, be paid for such work to a non-patient. Every such patient shall, in any event, have the right to receive a fair share of any remuneration which is paid to the mental health facility for his or her work.

== Principle 14 ==

'''Resources for mental health facilities'''

1. A mental health facility shall have access to the same level of resources as any other health establishment, and in particular:

( a ) Qualified medical and other appropriate professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy;

( b ) Diagnostic and therapeutic equipment for the patient;

( c ) Appropriate professional care; and

( d ) Adequate, regular and comprehensive treatment, including supplies of medication.

2. Every mental health facility shall be inspected by the competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with these Principles.

== Principle 15 ==

'''Admission principles'''

1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission.

2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness.

3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

== Principle 16 ==

'''Involuntary admission'''

1. A person may ( a ) be admitted involuntarily to a mental health facility as a patient; or ( b ) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that that person has a mental illness and considers:

( a ) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

( b ) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

In the case referred to in subparagraph ( b ), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.

2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

== Principle 17 ==

'''Review body'''

1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.

== Principle 18 ==

Procedural safeguards

1. The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter. Where such services are necessary and the patient does not secure them, they shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others. As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any part of a document is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision whether the hearing or any part of it shall be in public or in private and may be publicly reported shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

8. The decision arising out of the hearing and the reasons for it shall be expressed in writing. Copies shall be given to the patient and his or her personal representative and counsel. In deciding whether the decision shall be published in whole or in part, full consideration shall be given to the patient's own wishes, to the need to respect his or her privacy and that of other persons, to the public interest in the open administration of justice and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

== Principle 19 ==

'''Access to information'''

1. A patient (which term in this Principle includes a former patient) shall be entitled to have access to the information concerning the patient in his or her health and personal records maintained by a mental health facility. This right may be subject to restrictions in order to prevent serious harm to the patient's health and avoid putting at risk the safety of others. As domestic law may provide, any such information not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any of the information is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and it shall be subject to judicial review.

2. Any written comments by the patient or the patient's personal representative or counsel shall, on request, be inserted in the patient's file.

== Principle 20 ==

'''Criminal offenders'''

1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

2. All such persons should receive the best available mental health care as provided in Principle 1. These Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.

3. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

4. Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11.

== Principle 21 ==

'''Complaints'''

Every patient and former patient shall have the right to make a complaint through procedures as specified by domestic law.

== Principle 22 ==

'''Monitoring and remedies'''

States shall ensure that appropriate mechanisms are in force to promote compliance with these Principles, for the inspection of mental health facilities, for the submission, investigation and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient.

== Principle 23 ==

'''Implementation'''

1. States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. States shall make these Principles widely known by appropriate and active means.

== Principle 24 ==

'''Scope of principles relating to mental health facilities'''

These Principles apply to all persons who are admitted to a mental health facility.

== Principle 25 ==

'''Saving of existing rights'''

There shall be no restriction upon or derogation from any existing rights of patients, including rights recognized in applicable international or domestic law, on the pretext that these Principles do not recognize such rights or that they recognize them to a lesser extent.

Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

2010-10-19T14:46:12Z

Cdavies:

'''Adopted by General Assembly resolution 46/119 of 17 December 1991'''

===Application===

These Principles shall be applied without discrimination of any kind such as on grounds of disability, race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, legal or social status, age, property or birth.

===Definitions===

In these Principles:

"Counsel" means a legal or other qualified representative;

"Independent authority" means a competent and independent authority prescribed by domestic law;

"Mental health care" includes analysis and diagnosis of a person's mental condition, and treatment, care and rehabilitation for a mental illness or suspected mental illness;

"Mental health facility" means any establishment, or any unit of an establishment, which as its primary function provides mental health care;

"Mental health practitioner" means a medical doctor, clinical psychologist, nurse, social worker or other appropriately trained and qualified person with specific skills relevant to mental health care;

"Patient" means a person receiving mental health care and includes all persons who are admitted to a mental health facility;

"Personal representative" means a person charged by law with the duty of representing a patient's interests in any specified respect or of exercising specified rights on the patient's behalf, and includes the parent or legal guardian of a minor unless otherwise provided by domestic law;

"The review body" means the body established in accordance with Principle 17 to review the involuntary admission or retention of a patient in a mental health facility.

===Principle 1===

'''Fundamental freedoms and basic rights'''

1. All persons have the right to the best available mental health care, which shall be part of the health and social care system.

2. All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.

3. All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.

4. There shall be no discrimination on the grounds of mental illness. "Discrimination" means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.

5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law. The person whose capacity is at issue shall be entitled to be represented by a counsel. If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it. The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest. Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law. The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.

7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person's condition, to ensure the protection of his or her interest.

===Principle 2===

'''Protection of minors'''

Special care should be given within the purposes of these Principles and within the context of domestic law relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.

===Principle 3===

'''Life in the community'''

Every person with a mental illness shall have the right to live and work, as far as possible, in the community.

===Principle 4===

'''Determination of mental illness'''

1. A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.

2. A determination of mental illness shall never be made on the basis of political, economic or social status, or membership of a cultural, racial or religious group, or any other reason not directly relevant to mental health status.

3. Family or professional conflict, or non-conformity with moral, social, cultural or political values or religious beliefs prevailing in a person's community, shall never be a determining factor in diagnosing mental illness.

4. A background of past treatment or hospitalization as a patient shall not of itself justify any present or future determination of mental illness.

5. No person or authority shall classify a person as having, or otherwise indicate that a person has, a mental illness except for purposes directly relating to mental illness or the consequences of mental illness.

===Principle 5===

'''Medical examination'''

No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by domestic law.

===Principle 6===

'''Confidentiality'''

The right of confidentiality of information concerning all persons to whom these Principles apply shall be respected.

===Principle 7===

'''Role of community and culture'''

1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.

2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her or the of his or her relatives or friends and shall have the right to return to the community as soon as possible.

3. Every patient shall have the right to treatment suited to his or her cultural background.

===Principle 8===

'''Standards of care'''

1. Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons.

2. Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.

===Principle 9===

'''Treatment'''

1. Every patient shall have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the physical safety of others.

2. The treatment and care of every patient shall be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary and provided by qualified professional staff.

3. Mental health care shall always be provided in accordance with applicable standards of ethics for mental health practitioners, including internationally accepted standards such as the Principles of Medical Ethics adopted by the United Nations General Assembly. Mental health knowledge and skills shall never be abused.

4. The treatment of every patient shall be directed towards preserving and enhancing personal autonomy.

== Principle 10 ==

'''Medication'''

1. Medication shall meet the best health needs of the patient, shall be given to a patient only for therapeutic or diagnostic purposes and shall never be administered as a punishment or for the convenience of others. Subject to the provisions of paragraph 15 of Principle 11, mental health practitioners shall only administer medication of known or demonstrated efficacy.

2. All medication shall be prescribed by a mental health practitioner authorized by law and shall be recorded in the patient's records.

== Principle 11 ==

'''Consent to treatment'''

1. No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13 and 15 below.

2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

( a ) The diagnostic assessment;

( b ) The purpose, method, likely duration and expected benefit of the proposed treatment;

( c ) Alternative modes of treatment, including those less intrusive; and

( d ) Possible pain or discomfort, risks and side-effects of the proposed treatment.

3. A patient may request the presence of a person or persons of the patient's choosing during the procedure for granting consent.

4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 below. The consequences of refusing or stopping treatment must be explained to the patient.

5. A patient shall never be invited or induced to waive the right to informed consent. If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent.

6. Except as provided in paragraphs 7, 8, 12, 13, 14 and 15 below, a proposed plan of treatment may be given to a patient without a patient's informed consent if the following conditions are satisfied:

( a ) The patient is, at the relevant time, held as an involuntary patient;

( b ) An independent authority, having in its possession all relevant information, including the information specified in paragraph 2 above, is satisfied that, at the relevant time, the patient lacks the capacity to give or withhold informed consent to the proposed plan of treatment or, if domestic legislation so provides, that, having regard to the patient's own safety or the safety of others, the patient unreasonably withholds such consent; and

( c ) The independent authority is satisfied that the proposed plan of treatment is in the best interest of the patient's health needs.

7. Paragraph 6 above does not apply to a patient with a personal representative empowered by law to consent to treatment for the patient; but, except as provided in paragraphs 12, 13, 14 and 15 below, treatment may be given to such a patient without his or her informed consent if the personal representative, having been given the information described in paragraph 2 above, consents on the patient's behalf.

8. Except as provided in paragraphs 12, 13, 14 and 15 below, treatment may also be given to any patient without the patient's informed consent if a qualified mental health practitioner authorized by law determines that it is urgently necessary in order to prevent immediate or imminent harm to the patient or to other persons. Such treatment shall not be prolonged beyond the period that is strictly necessary for this purpose.

9. Where any treatment is authorized without the patient's informed consent, every effort shall nevertheless be made to inform the patient about the nature of the treatment and any possible alternatives and to involve the patient as far as practicable in the development of the treatment plan.

10. All treatment shall be immediately recorded in the patient's medical records, with an indication of whether involuntary or voluntary.

11. Physical restraint or involuntary seclusion of a patient shall not be employed except in accordance with the officially approved procedures of the mental health facility and only when it is the only means available to prevent immediate or imminent harm to the patient or others. It shall not be prolonged beyond the period which is strictly necessary for this purpose. All instances of physical restraint or involuntary seclusion, the reasons for them and their nature and extent shall be recorded in the patient's medical record. A patient who is restrained or secluded shall be kept under humane conditions and be under the care and close and regular supervision of qualified members of the staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.

12. Sterilization shall never be carried out as a treatment for mental illness.

13. A major medical or surgical procedure may be carried out on a person with mental illness only where it is permitted by domestic law, where it is considered that it would best serve the health needs of the patient and where the patient gives informed consent, except that, where the patient is unable to give informed consent, the procedure shall be authorized only after independent review.

14. Psychosurgery and other intrusive and irreversible treatments for mental illness shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient.

15. Clinical trials and experimental treatment shall never be carried out on any patient without informed consent, except that a patient who is unable to give informed consent may be admitted to a clinical trial or given experimental treatment, but only with the approval of a competent, independent review body specifically constituted for this purpose.

16. In the cases specified in paragraphs 6, 7, 8, 13, 14 and 15 above, the patient or his or her personal representative, or any interested person, shall have the right to appeal to a judicial or other independent authority concerning any treatment given to him or her.

== Principle 12 ==

'''Notice of rights'''

1. A patient in a mental health facility shall be informed as soon as possible after admission, in a form and a language which the patient understands, of all his or her rights in accordance with these Principles and under domestic law, which information shall include an explanation of those rights and how to exercise them.

2. If and for so long as a patient is unable to understand such information, the rights of the patient shall be communicated to the personal representative, if any and if appropriate, and to the person or persons best able to represent the patient's interests and willing to do so.

3. A patient who has the necessary capacity has the right to nominate a person who should be informed on his or her behalf, as well as a person to represent his or her interests to the authorities of the facility.

== Principle 13 ==

'''Rights and conditions in mental health facilities'''

1. Every patient in a mental health facility shall, in particular, have the right to full respect for his or her:

( a ) Recognition everywhere as a person before the law;

( b ) Privacy;

( c ) Freedom of communication, which includes freedom to communicate with other persons in the facility; freedom to send and receive uncensored private communications; freedom to receive, in private, visits from a counsel or personal representative and, at all reasonable times, from other visitors; and freedom of access to postal and telephone services and to newspapers, radio and television;

( d ) Freedom of religion or belief.

2. The environment and living conditions in mental health facilities shall be as close as possible to those of the normal life of persons of similar age and in particular shall include:

( a ) Facilities for recreational and leisure activities;

( b ) Facilities for education;

( c ) Facilities to purchase or receive items for daily living, recreation and communication;

( d ) Facilities, and encouragement to use such facilities, for a patient's engagement in active occupation suited to his or her social and cultural background, and for appropriate vocational rehabilitation measures to promote reintegration in the community. These measures should include vocational guidance, vocational training and placement services to enable patients to secure or retain employment in the community.

3. In no circumstances shall a patient be subject to forced labour. Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.

4. The labour of a patient in a mental health facility shall not be exploited. Every such patient shall have the right to receive the same remuneration for any work which he or she does as would, according to domestic law or custom, be paid for such work to a non-patient. Every such patient shall, in any event, have the right to receive a fair share of any remuneration which is paid to the mental health facility for his or her work.

== Principle 14 ==

'''Resources for mental health facilities'''

1. A mental health facility shall have access to the same level of resources as any other health establishment, and in particular:

( a ) Qualified medical and other appropriate professional staff in sufficient numbers and with adequate space to provide each patient with privacy and a programme of appropriate and active therapy;

( b ) Diagnostic and therapeutic equipment for the patient;

( c ) Appropriate professional care; and

( d ) Adequate, regular and comprehensive treatment, including supplies of medication.

2. Every mental health facility shall be inspected by the competent authorities with sufficient frequency to ensure that the conditions, treatment and care of patients comply with these Principles.

== Principle 15 ==

'''Admission principles'''

1. Where a person needs treatment in a mental health facility, every effort shall be made to avoid involuntary admission.

2. Access to a mental health facility shall be administered in the same way as access to any other facility for any other illness.

3. Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient, as set forth in Principle 16, apply, and he or she shall be informed of that right.

== Principle 16 ==

'''Involuntary admission'''

1. A person may ( a ) be admitted involuntarily to a mental health facility as a patient; or ( b ) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that that person has a mental illness and considers:

( a ) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or

( b ) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.

In the case referred to in subparagraph ( b ), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.

2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient's personal representative, if any, and, unless the patient objects, to the patient's family.

3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.

== Principle 17 ==

'''Review body'''

1. The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.

2. The review body's initial review, as required by paragraph 2 of Principle 16, of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law.

3. The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law.

4. An involuntary patient may apply to the review body for release or voluntary status, at reasonable intervals as specified by domestic law.

5. At each review, the review body shall consider whether the criteria for involuntary admission set out in paragraph 1 of Principle 16 are still satisfied, and, if not, the patient shall be discharged as an involuntary patient.

6. If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied, he or she shall order the discharge of that person as such a patient.

7. A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.

== Principle 18 ==

Procedural safeguards

1. The patient shall be entitled to choose and appoint a counsel to represent the patient as such, including representation in any complaint procedure or appeal. If the patient does not secure such services, a counsel shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

2. The patient shall also be entitled to the assistance, if necessary, of the services of an interpreter. Where such services are necessary and the patient does not secure them, they shall be made available without payment by the patient to the extent that the patient lacks sufficient means to pay.

3. The patient and the patient's counsel may request and produce at any hearing an independent mental health report and any other reports and oral, written and other evidence that are relevant and admissible.

4. Copies of the patient's records and any reports and documents to be submitted shall be given to the patient and to the patient's counsel, except in special cases where it is determined that a specific disclosure to the patient would cause serious harm to the patient's health or put at risk the safety of others. As domestic law may provide, any document not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any part of a document is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and shall be subject to judicial review.

5. The patient and the patient's personal representative and counsel shall be entitled to attend, participate and be heard personally in any hearing.

6. If the patient or the patient's personal representative or counsel requests that a particular person be present at a hearing, that person shall be admitted unless it is determined that the person's presence could cause serious harm to the patient's health or put at risk the safety of others.

7. Any decision whether the hearing or any part of it shall be in public or in private and may be publicly reported shall give full consideration to the patient's own wishes, to the need to respect the privacy of the patient and of other persons and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

8. The decision arising out of the hearing and the reasons for it shall be expressed in writing. Copies shall be given to the patient and his or her personal representative and counsel. In deciding whether the decision shall be published in whole or in part, full consideration shall be given to the patient's own wishes, to the need to respect his or her privacy and that of other persons, to the public interest in the open administration of justice and to the need to prevent serious harm to the patient's health or to avoid putting at risk the safety of others.

== Principle 19 ==

'''Access to information'''

1. A patient (which term in this Principle includes a former patient) shall be entitled to have access to the information concerning the patient in his or her health and personal records maintained by a mental health facility. This right may be subject to restrictions in order to prevent serious harm to the patient's health and avoid putting at risk the safety of others. As domestic law may provide, any such information not given to the patient should, when this can be done in confidence, be given to the patient's personal representative and counsel. When any of the information is withheld from a patient, the patient or the patient's counsel, if any, shall receive notice of the withholding and the reasons for it and it shall be subject to judicial review.

2. Any written comments by the patient or the patient's personal representative or counsel shall, on request, be inserted in the patient's file.

== Principle 20 ==

'''Criminal offenders'''

1. This Principle applies to persons serving sentences of imprisonment for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness.

2. All such persons should receive the best available mental health care as provided in Principle 1. These Principles shall apply to them to the fullest extent possible, with only such limited modifications and exceptions as are necessary in the circumstances. No such modifications and exceptions shall prejudice the persons' rights under the instruments noted in paragraph 5 of Principle 1.

3. Domestic law may authorize a court or other competent authority, acting on the basis of competent and independent medical advice, to order that such persons be admitted to a mental health facility.

4. Treatment of persons determined to have a mental illness shall in all circumstances be consistent with Principle 11.

== Principle 21 ==

'''Complaints'''

Every patient and former patient shall have the right to make a complaint through procedures as specified by domestic law.

== Principle 22 ==

'''Monitoring and remedies'''

States shall ensure that appropriate mechanisms are in force to promote compliance with these Principles, for the inspection of mental health facilities, for the submission, investigation and resolution of complaints and for the institution of appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of a patient.

== Principle 23 ==

'''Implementation'''

1. States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically.

2. States shall make these Principles widely known by appropriate and active means.

== Principle 24 ==

'''Scope of principles relating to mental health facilities'''

These Principles apply to all persons who are admitted to a mental health facility.

== Principle 25 ==

'''Saving of existing rights'''

There shall be no restriction upon or derogation from any existing rights of patients, including rights recognized in applicable international or domestic law, on the pretext that these Principles do not recognize such rights or that they recognize them to a lesser extent.

Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

2010-10-19T14:02:46Z

Cdavies: Created page with ''''Adopted by General Assembly resolution 46/119 of 17 December 1991''' ===Application=== These Principles shall be applied without discrimination of any kind such as on groun�'

International Law

2010-10-19T13:56:51Z

Cdavies: /* Other Important Treaties */

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

2010-10-19T13:39:43Z

Cdavies:

'''Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990'''

Whereas the work of law enforcement officials <ref>In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement Officials, the term "law enforcement officials" includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention. In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.</ref> is a social service of great importance and there is, therefore, a need to maintain and, whenever necessary, to improve the working conditions and status of these officials,

Whereas a threat to the life and safety of law enforcement officials must be seen as a threat to the stability of society as a whole,

Whereas law enforcement officials have a vital role in the protection of the right to life, liberty and security of the person, as guaranteed in the Universal Declaration of Human Rights and reaffirmed in the International Covenant on Civil and Political Rights,

Whereas the Standard Minimum Rules for the Treatment of Prisoners provide for the circumstances in which prison officials may use force in the course of their duties,

Whereas article 3 of the Code of Conduct for Law Enforcement Officials provides that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty,

Whereas the preparatory meeting for the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Varenna, Italy, agreed on elements to be considered in the course of further work on restraints on the use of force and firearms by law enforcement officials,

Whereas the Seventh Congress, in its resolution 14, inter alia , emphasizes that the use of force and firearms by law enforcement officials should be commensurate with due respect for human rights,

Whereas the Economic and Social Council, in its resolution 1986/10, section IX, of 21 May 1986, invited Member States to pay particular attention in the implementation of the Code to the use of force and firearms by law enforcement officials, and the General Assembly, in its resolution 41/149 of 4 December 1986, inter alia , welcomed this recommendation made by the Council,

Whereas it is appropriate that, with due regard to their personal safety, consideration be given to the role of law enforcement officials in relation to the administration of justice, to the protection of the right to life, liberty and security of the person, to their responsibility to maintain public safety and social peace and to the importance of their qualifications, training and conduct,

The basic principles set forth below, which have been formulated to assist Member States in their task of ensuring and promoting the proper role of law enforcement officials, should be taken into account and respected by Governments within the framework of their national legislation and practice, and be brought to the attention of law enforcement officials as well as other persons, such as judges, prosecutors, lawyers, members of the executive branch and the legislature, and the public.

'''General provisions'''

1. Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review.

2. Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind.

3. The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.

4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

( a ) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

( b ) Minimize damage and injury, and respect and preserve human life;

( c ) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

( d ) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.

6. Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22.

7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.

'''Special provisions'''

9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:

( a ) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;

( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;

( c ) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;

( d ) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;

( e ) Provide for warnings to be given, if appropriate, when firearms are to be discharged;

( f ) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.

'''Policing unlawful assemblies'''

12. As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with the principles embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Governments and law enforcement agencies and officials shall recognize that force and firearms may be used only in accordance with principles 13 and 14.

13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

14. In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9.

'''Policing persons in custody or detention'''

15. Law enforcement officials, in their relations with persons in custody or detention, shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened.

16. Law enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody or detention presenting the danger referred to in principle 9.

17. The preceding principles are without prejudice to the rights, duties and responsibilities of prison officials, as set out in the Standard Minimum Rules for the Treatment of Prisoners, particularly rules 33, 34 and 54.

'''Qualifications, training and counselling'''

18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review.

19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use.

20. In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents.

21. Governments and law enforcement agencies shall make stress counselling available to law enforcement officials who are involved in situations where force and firearms are used.

'''Reporting and review procedures'''

22. Governments and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles 6 and 11 ( f ). For incidents reported pursuant to these principles, Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.

23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.

24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.

25. Governments and law enforcement agencies shall ensure that no criminal or disciplinary sanction is imposed on law enforcement officials who, in compliance with the Code of Conduct for Law Enforcement Officials and these basic principles, refuse to carry out an order to use force and firearms, or who report such use by other officials.

26. Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.

<references/>

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

2010-10-19T13:38:09Z

Cdavies:

'''Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990'''

Whereas the work of law enforcement officials <ref>In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement Officials, the term "law enforcement officials" includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention. In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.<ref/> is a social service of great importance and there is, therefore, a need to maintain and, whenever necessary, to improve the working conditions and status of these officials,

Whereas a threat to the life and safety of law enforcement officials must be seen as a threat to the stability of society as a whole,

Whereas law enforcement officials have a vital role in the protection of the right to life, liberty and security of the person, as guaranteed in the Universal Declaration of Human Rights and reaffirmed in the International Covenant on Civil and Political Rights,

Whereas the Standard Minimum Rules for the Treatment of Prisoners provide for the circumstances in which prison officials may use force in the course of their duties,

Whereas article 3 of the Code of Conduct for Law Enforcement Officials provides that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty,

Whereas the preparatory meeting for the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Varenna, Italy, agreed on elements to be considered in the course of further work on restraints on the use of force and firearms by law enforcement officials,

Whereas the Seventh Congress, in its resolution 14, inter alia , emphasizes that the use of force and firearms by law enforcement officials should be commensurate with due respect for human rights,

Whereas the Economic and Social Council, in its resolution 1986/10, section IX, of 21 May 1986, invited Member States to pay particular attention in the implementation of the Code to the use of force and firearms by law enforcement officials, and the General Assembly, in its resolution 41/149 of 4 December 1986, inter alia , welcomed this recommendation made by the Council,

Whereas it is appropriate that, with due regard to their personal safety, consideration be given to the role of law enforcement officials in relation to the administration of justice, to the protection of the right to life, liberty and security of the person, to their responsibility to maintain public safety and social peace and to the importance of their qualifications, training and conduct,

The basic principles set forth below, which have been formulated to assist Member States in their task of ensuring and promoting the proper role of law enforcement officials, should be taken into account and respected by Governments within the framework of their national legislation and practice, and be brought to the attention of law enforcement officials as well as other persons, such as judges, prosecutors, lawyers, members of the executive branch and the legislature, and the public.

'''General provisions'''

1. Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review.

2. Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind.

3. The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.

4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

( a ) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

( b ) Minimize damage and injury, and respect and preserve human life;

( c ) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

( d ) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.

6. Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22.

7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.

'''Special provisions'''

9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:

( a ) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;

( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;

( c ) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;

( d ) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;

( e ) Provide for warnings to be given, if appropriate, when firearms are to be discharged;

( f ) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.

'''Policing unlawful assemblies'''

12. As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with the principles embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Governments and law enforcement agencies and officials shall recognize that force and firearms may be used only in accordance with principles 13 and 14.

13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

14. In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9.

'''Policing persons in custody or detention'''

15. Law enforcement officials, in their relations with persons in custody or detention, shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened.

16. Law enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody or detention presenting the danger referred to in principle 9.

17. The preceding principles are without prejudice to the rights, duties and responsibilities of prison officials, as set out in the Standard Minimum Rules for the Treatment of Prisoners, particularly rules 33, 34 and 54.

'''Qualifications, training and counselling'''

18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review.

19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use.

20. In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents.

21. Governments and law enforcement agencies shall make stress counselling available to law enforcement officials who are involved in situations where force and firearms are used.

'''Reporting and review procedures'''

22. Governments and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles 6 and 11 ( f ). For incidents reported pursuant to these principles, Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.

23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.

24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.

25. Governments and law enforcement agencies shall ensure that no criminal or disciplinary sanction is imposed on law enforcement officials who, in compliance with the Code of Conduct for Law Enforcement Officials and these basic principles, refuse to carry out an order to use force and firearms, or who report such use by other officials.

26. Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.

<references/>

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

2010-10-19T13:37:42Z

Cdavies: Created page with ''''Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990''' Whereas the work of l�'

'''Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990'''

Whereas the work of law enforcement officials <ref>In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement Officials, the term "law enforcement officials" includes all officers of the law, whether appointed or elected, who exercise police powers, especially the powers of arrest or detention. In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.<ref/> is a social service of great importance and there is, therefore, a need to maintain and, whenever necessary, to improve the working conditions and status of these officials,

Whereas a threat to the life and safety of law enforcement officials must be seen as a threat to the stability of society as a whole,

Whereas law enforcement officials have a vital role in the protection of the right to life, liberty and security of the person, as guaranteed in the Universal Declaration of Human Rights and reaffirmed in the International Covenant on Civil and Political Rights,

Whereas the Standard Minimum Rules for the Treatment of Prisoners provide for the circumstances in which prison officials may use force in the course of their duties,

Whereas article 3 of the Code of Conduct for Law Enforcement Officials provides that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty,

Whereas the preparatory meeting for the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Varenna, Italy, agreed on elements to be considered in the course of further work on restraints on the use of force and firearms by law enforcement officials,

Whereas the Seventh Congress, in its resolution 14, inter alia , emphasizes that the use of force and firearms by law enforcement officials should be commensurate with due respect for human rights,

Whereas the Economic and Social Council, in its resolution 1986/10, section IX, of 21 May 1986, invited Member States to pay particular attention in the implementation of the Code to the use of force and firearms by law enforcement officials, and the General Assembly, in its resolution 41/149 of 4 December 1986, inter alia , welcomed this recommendation made by the Council,

Whereas it is appropriate that, with due regard to their personal safety, consideration be given to the role of law enforcement officials in relation to the administration of justice, to the protection of the right to life, liberty and security of the person, to their responsibility to maintain public safety and social peace and to the importance of their qualifications, training and conduct,

The basic principles set forth below, which have been formulated to assist Member States in their task of ensuring and promoting the proper role of law enforcement officials, should be taken into account and respected by Governments within the framework of their national legislation and practice, and be brought to the attention of law enforcement officials as well as other persons, such as judges, prosecutors, lawyers, members of the executive branch and the legislature, and the public.

'''General provisions'''

1. Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials. In developing such rules and regulations, Governments and law enforcement agencies shall keep the ethical issues associated with the use of force and firearms constantly under review.

2. Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms. These should include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. For the same purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of transportation, in order to decrease the need to use weapons of any kind.

3. The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.

4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

( a ) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

( b ) Minimize damage and injury, and respect and preserve human life;

( c ) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

( d ) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.

6. Where injury or death is caused by the use of force and firearms by law enforcement officials, they shall report the incident promptly to their superiors, in accordance with principle 22.

7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles.

'''Special provisions'''

9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.

10. In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:

( a ) Specify the circumstances under which law enforcement officials are authorized to carry firearms and prescribe the types of firearms and ammunition permitted;

( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm;

( c ) Prohibit the use of those firearms and ammunition that cause unwarranted injury or present an unwarranted risk;

( d ) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them;

( e ) Provide for warnings to be given, if appropriate, when firearms are to be discharged;

( f ) Provide for a system of reporting whenever law enforcement officials use firearms in the performance of their duty.

'''Policing unlawful assemblies'''

12. As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with the principles embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Governments and law enforcement agencies and officials shall recognize that force and firearms may be used only in accordance with principles 13 and 14.

13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

14. In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9.

'''Policing persons in custody or detention'''

15. Law enforcement officials, in their relations with persons in custody or detention, shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened.

16. Law enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody or detention presenting the danger referred to in principle 9.

17. The preceding principles are without prejudice to the rights, duties and responsibilities of prison officials, as set out in the Standard Minimum Rules for the Treatment of Prisoners, particularly rules 33, 34 and 54.

'''Qualifications, training and counselling'''

18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review.

19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorized to do so only upon completion of special training in their use.

20. In the training of law enforcement officials, Governments and law enforcement agencies shall give special attention to issues of police ethics and human rights, especially in the investigative process, to alternatives to the use of force and firearms, including the peaceful settlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion, negotiation and mediation, as well as to technical means, with a view to limiting the use of force and firearms. Law enforcement agencies should review their training programmes and operational procedures in the light of particular incidents.

21. Governments and law enforcement agencies shall make stress counselling available to law enforcement officials who are involved in situations where force and firearms are used.

'''Reporting and review procedures'''

22. Governments and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles 6 and 11 ( f ). For incidents reported pursuant to these principles, Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.

23. Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.

24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.

25. Governments and law enforcement agencies shall ensure that no criminal or disciplinary sanction is imposed on law enforcement officials who, in compliance with the Code of Conduct for Law Enforcement Officials and these basic principles, refuse to carry out an order to use force and firearms, or who report such use by other officials.

26. Obedience to superior orders shall be no defence if law enforcement officials knew that an order to use force and firearms resulting in the death or serious injury of a person was manifestly unlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also rests on the superiors who gave the unlawful orders.

</references>

International Law

2010-10-19T13:15:34Z

Cdavies: /* Other Important Treaties */

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T13:08:00Z

Cdavies: /* Part III */

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T13:06:06Z

Cdavies: /* Part III */

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T12:57:38Z

Cdavies: /* Part II */

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T12:51:42Z

Cdavies: /* Preamble */

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T12:50:51Z

Cdavies: /* Part I */

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T12:49:14Z

Cdavies: /* Part I */

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T12:41:11Z

Cdavies:

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T12:00:59Z

Cdavies:

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T10:25:37Z

Cdavies: /* Part II */

International Covenant for the Protection of All Persons from Enforced Disappearance

2010-10-19T10:15:09Z

Cdavies: /* Part II */

===Preamble===

''The States Parties to this Convention,''

''Considering'' the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms,

''Having regard'' to the Universal Declaration of Human Rights,

''Recalling'' the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the other relevant international instruments in the fields of human rights, humanitarian law and international criminal law,

''Also recalling'' the Declaration on the Protection of All Persons from Enforced Disappearance adopted by the General Assembly of the United Nations in its resolution 47/133 of 18 December 1992 ,

''Aware'' of the extreme seriousness of enforced disappearance, which constitutes a crime and, in certain circumstances defined in international law, a crime against humanity,

''Determined'' to prevent enforced disappearances and to combat impunity for the crime of enforced disappearance,

''Considering'' the right of any person not to be subjected to enforced disappearance, the right of victims to justice and to reparation,

''Affirming'' the right of any victim to know the truth about the circumstances of an enforced disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and impart information to this end,

''Have agreed'' on the following articles:

== Part I ==

===Article 1===

1. No one shall be subjected to enforced disappearance.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.

===Article 2===

For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

===Article 3===

Each State Party shall take appropriate measures to investigate acts defined in article 2 committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice.

===Article 4===

Each State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.

===Article 5===

The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law.

===Article 6===

1. Each State Party shall take the necessary measures to hold criminally responsible at least:

''( a )'' Any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance;

''( b )'' A superior who:

(i) Knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance;

(ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and

(iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution;

''( c )'' Subparagraph ''( b )'' above is without prejudice to the higher standards of responsibility applicable under relevant international law to a military commander or to a person effectively acting as a military commander.

2. No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance.

===Article 7===

1. Each State Party shall make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness.

2. Each State Party may establish:

''( a )'' Mitigating circumstances, in particular for persons who, having been implicated in the commission of an enforced disappearance, effectively contribute to bringing the disappeared person forward alive or make it possible to clarify cases of enforced disappearance or to identify the perpetrators of an enforced disappearance;

''( b )'' Without prejudice to other criminal procedures, aggravating circumstances, in particular in the event of the death of the disappeared person or the commission of an enforced disappearance in respect of pregnant women, minors, persons with disabilities or other particularly vulnerable persons.

===Article 8===

Without prejudice to article 5,

1. A State Party which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings:

''( a )'' Is of long duration and is proportionate to the extreme seriousness of this offence;

''( b )'' Commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature.

2. Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation.

===Article 9===

1. Each State Party shall take the necessary measures to establish its competence to exercise jurisdiction over the offence of enforced disappearance:

''( a )'' When the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

''( b )'' When the alleged offender is one of its nationals;

''( c )'' When the disappeared person is one of its nationals and the State Party considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its competence to exercise jurisdiction over the offence of enforced disappearance when the alleged offender is present in any territory under its jurisdiction, unless it extradites or surrenders him or her to another State in accordance with its international obligations or surrenders him or her to an international criminal tribunal whose jurisdiction it has recognized.

3. This Convention does not exclude any additional criminal jurisdiction exercised in accordance with national law.

===Article 10===

1. Upon being satisfied, after an examination of the information available to it, that the circumstances so warrant, any State Party in whose territory a person suspected of having committed an offence of enforced disappearance is present shall take him or her into custody or take such other legal measures as are necessary to ensure his or her presence. The custody and other legal measures shall be as provided for in the law of that State Party but may be maintained only for such time as is necessary to ensure the person's presence at criminal, surrender or extradition proceedings.

2. A State Party which has taken the measures referred to in paragraph 1 of this article shall immediately carry out a preliminary inquiry or investigations to establish the facts. It shall notify the States Parties referred to in article 9, paragraph 1, of the measures it has taken in pursuance of paragraph 1 of this article, including detention and the circumstances warranting detention, and of the findings of its preliminary inquiry or its investigations, indicating whether it intends to exercise its jurisdiction.

3. Any person in custody pursuant to paragraph 1 of this article may communicate immediately with the nearest appropriate representative of the State of which he or she is a national, or, if he or she is a stateless person, with the representative of the State where he or she usually resides.

===Article 11===

1. The State Party in the territory under whose jurisdiction a person alleged to have committed an offence of enforced disappearance is found shall, if it does not extradite that person or surrender him or her to another State in accordance with its international obligations or surrender him or her to an international criminal tribunal whose jurisdiction it has recognized, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State Party. In the cases referred to in article 9, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 9, paragraph 1.

3. Any person against whom proceedings are brought in connection with an offence of enforced disappearance shall be guaranteed fair treatment at all stages of the proceedings. Any person tried for an offence of enforced disappearance shall benefit from a fair trial before a competent, independent and impartial court or tribunal established by law.

===Article 12===

1. Each State Party shall ensure that any individual who alleges that a person has been subjected to enforced disappearance has the right to report the facts to the competent authorities, which shall examine the allegation promptly and impartially and, where necessary, undertake without delay a thorough and impartial investigation. Appropriate steps shall be taken, where necessary, to ensure that the complainant, witnesses, relatives of the disappeared person and their defence counsel, as well as persons participating in the investigation, are protected against all ill-treatment or intimidation as a consequence of the complaint or any evidence given.

2. Where there are reasonable grounds for believing that a person has been subjected to enforced disappearance, the authorities referred to in paragraph 1 of this article shall undertake an investigation, even if there has been no formal complaint.

3. Each State Party shall ensure that the authorities referred to in paragraph 1 of this article:

''( a )'' Have the necessary powers and resources to conduct the investigation effectively, including access to the documentation and other information relevant to their investigation;

''( b )'' Have access, if necessary with the prior authorization of a judicial authority, which shall rule promptly on the matter, to any place of detention or any other place where there are reasonable grounds to believe that the disappeared person may be present.

4. Each State Party shall take the necessary measures to prevent and sanction acts that hinder the conduct of an investigation. It shall ensure in particular that persons suspected of having committed an offence of enforced disappearance are not in a position to influence the progress of an investigation by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defence counsel, or at persons participating in the investigation.

===Article 13===

1. For the purposes of extradition between States Parties, the offence of enforced disappearance shall not be regarded as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition based on such an offence may not be refused on these grounds alone.

2. The offence of enforced disappearance shall be deemed to be included as an extraditable offence in any extradition treaty existing between States Parties before the entry into force of this Convention.

3. States Parties undertake to include the offence of enforced disappearance as an extraditable offence in any extradition treaty subsequently to be concluded between them.

4. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the necessary legal basis for extradition in respect of the offence of enforced disappearance.

5. States Parties which do not make extradition conditional on the existence of a treaty shall recognize the offence of enforced disappearance as an extraditable offence between themselves.

6. Extradition shall, in all cases, be subject to the conditions provided for by the law of the requested State Party or by applicable extradition treaties, including, in particular, conditions relating to the minimum penalty requirement for extradition and the grounds upon which the requested State Party may refuse extradition or make it subject to certain conditions.

7. Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person's sex, race, religion, nationality, ethnic origin, political opinions or membership of a particular social group, or that compliance with the request would cause harm to that person for any one of these reasons.

===Article 14===

1. States Parties shall afford one another the greatest measure of mutual legal assistance in connection with criminal proceedings brought in respect of an offence of enforced disappearance, including the supply of all evidence at their disposal that is necessary for the proceedings.

2. Such mutual legal assistance shall be subject to the conditions provided for by the domestic law of the requested State Party or by applicable treaties on mutual legal assistance, including, in particular, the conditions in relation to the grounds upon which the requested State Party may refuse to grant mutual legal assistance or may make it subject to conditions.

===Article 15===

States Parties shall cooperate with each other and shall afford one another the greatest measure of mutual assistance with a view to assisting victims of enforced disappearance, and in searching for, locating and releasing disappeared persons and, in the event of death, in exhuming and identifying them and returning their remains.

===Article 16===

1. No State Party shall expel, return ("refouler"), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law.

===Article 17===

1. No one shall be held in secret detention.

2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation:

''( a )'' Establish the conditions under which orders of deprivation of liberty may be given;

''( b )'' Indicate those authorities authorized to order the deprivation of liberty;

''( c )'' Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty;

''( d )'' Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law;

''( e )'' Guarantee access by the competent and legally authorized authorities and institutions to the places where persons are deprived of liberty, if necessary with prior authorization from a judicial authority;

''( f )'' Guarantee that any person deprived of liberty or, in the case of a suspected enforced disappearance, since the person deprived of liberty is not able to exercise this right, any persons with a legitimate interest, such as relatives of the person deprived of liberty, their representatives or their counsel, shall, in all circumstances, be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the deprivation of liberty and order the person's release if such deprivation of liberty is not lawful.

3. Each State Party shall assure the compilation and maintenance of one or more up-to-date official registers and/or records of persons deprived of liberty, which shall be made promptly available, upon request, to any judicial or other competent authority or institution authorized for that purpose by the law of the State Party concerned or any relevant international legal instrument to which the State concerned is a party. The information contained therein shall include, as a minimum:

''( a )'' The identity of the person deprived of liberty;

''( b )'' The date, time and place where the person was deprived of liberty and the identity of the authority that deprived the person of liberty;

''( c )'' The authority that ordered the deprivation of liberty and the grounds for the deprivation of liberty;

''( d )'' The authority responsible for supervising the deprivation of liberty;

''( e )'' The place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty and the authority responsible for the place of deprivation of liberty;

''( f )'' Elements relating to the state of health of the person deprived of liberty;

''( g )'' In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains;

''( h )'' The date and time of release or transfer to another place of detention, the destination and the authority responsible for the transfer.

===Article 18===

1. Subject to articles 19 and 20, each State Party shall guarantee to any person with a legitimate interest in this information, such as relatives of the person deprived of liberty, their representatives or their counsel, access to at least the following information:

''( a )'' The authority that ordered the deprivation of liberty;

''( b )'' The date, time and place where the person was deprived of liberty and admitted to the place of deprivation of liberty;

''( c )'' The authority responsible for supervising the deprivation of liberty;

''( d )'' The whereabouts of the person deprived of liberty, including, in the event of a transfer to another place of deprivation of liberty, the destination and the authority responsible for the transfer;

''( e )'' The date, time and place of release;

''( f )'' Elements relating to the state of health of the person deprived of liberty;

''( g )'' In the event of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains.

2. Appropriate measures shall be taken, where necessary, to protect the persons referred to in paragraph 1 of this article, as well as persons participating in the investigation, from any ill-treatment, intimidation or sanction as a result of the search for information concerning a person deprived of liberty.

===Article 19===

1. Personal information, including medical and genetic data, which is collected and/or transmitted within the framework of the search for a disappeared person shall not be used or made available for purposes other than the search for the disappeared person. This is without prejudice to the use of such information in criminal proceedings relating to an offence of enforced disappearance or the exercise of the right to obtain reparation.

2. The collection, processing, use and storage of personal information, including medical and genetic data, shall not infringe or have the effect of infringing the human rights, fundamental freedoms or human dignity of an individual.

===Article 20===

1. Only where a person is under the protection of the law and the deprivation of liberty is subject to judicial control may the right to information referred to in article 18 be restricted, on an exceptional basis, where strictly necessary and where provided for by law, and if the transmission of the information would adversely affect the privacy or safety of the person, hinder a criminal investigation, or for other equivalent reasons in accordance with the law, and in conformity with applicable international law and with the objectives of this Convention. In no case shall there be restrictions on the right to information referred to in article 18 that could constitute conduct defined in article 2 or be in violation of article 17, paragraph 1.

2. Without prejudice to consideration of the lawfulness of the deprivation of a person's liberty, States Parties shall guarantee to the persons referred to in article 18, paragraph 1, the right to a prompt and effective judicial remedy as a means of obtaining without delay the information referred to in article 18, paragraph 1. This right to a remedy may not be suspended or restricted in any circumstances.

===Article 21===

Each State Party shall take the necessary measures to ensure that persons deprived of liberty are released in a manner permitting reliable verification that they have actually been released. Each State Party shall also take the necessary measures to assure the physical integrity of such persons and their ability to exercise fully their rights at the time of release, without prejudice to any obligations to which such persons may be subject under national law.

===Article 22===

Without prejudice to article 6, each State Party shall take the necessary measures to prevent and impose sanctions for the following conduct:

''( a )'' Delaying or obstructing the remedies referred to in article 17, paragraph 2 ( f ), and article 20, paragraph 2;

''( b )'' Failure to record the deprivation of liberty of any person, or the recording of any information which the official responsible for the official register knew or should have known to be inaccurate;

''( c )'' Refusal to provide information on the deprivation of liberty of a person, or the provision of inaccurate information, even though the legal requirements for providing such information have been met.

===Article 23===

1. Each State Party shall ensure that the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody or treatment of any person deprived of liberty includes the necessary education and information regarding the relevant provisions of this Convention, in order to:

''( a )'' Prevent the involvement of such officials in enforced disappearances;

''( b )'' Emphasize the importance of prevention and investigations in relation to enforced disappearances;

''( c )'' Ensure that the urgent need to resolve cases of enforced disappearance is recognized.

2. Each State Party shall ensure that orders or instructions prescribing, authorizing or encouraging enforced disappearance are prohibited. Each State Party shall guarantee that a person who refuses to obey such an order will not be punished.

3. Each State Party shall take the necessary measures to ensure that the persons referred to in paragraph 1 of this article who have reason to believe that an enforced disappearance has occurred or is planned report the matter to their superiors and, where necessary, to the appropriate authorities or bodies vested with powers of review or remedy.

===Article 24===

1. For the purposes of this Convention, "victim" means the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance.

2. Each victim has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person. Each State Party shall take appropriate measures in this regard.

3. Each State Party shall take all appropriate measures to search for, locate and release disappeared persons and, in the event of death, to locate, respect and return their remains.

4. Each State Party shall ensure in its legal system that the victims of enforced disappearance have the right to obtain reparation and prompt, fair and adequate compensation.

5. The right to obtain reparation referred to in paragraph 4 of this article covers material and moral damages and, where appropriate, other forms of reparation such as:

''( a )'' Restitution;

''( b )'' Rehabilitation;

''( c )'' Satisfaction, including restoration of dignity and reputation;

''( d )'' Guarantees of non-repetition.

6. Without prejudice to the obligation to continue the investigation until the fate of the disappeared person has been clarified, each State Party shall take the appropriate steps with regard to the legal situation of disappeared persons whose fate has not been clarified and that of their relatives, in fields such as social welfare, financial matters, family law and property rights.

7. Each State Party shall guarantee the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearances and the fate of disappeared persons, and to assist victims of enforced disappearance.

===Article 25===

1. Each State Party shall take the necessary measures to prevent and punish under its criminal law:

''( a )'' The wrongful removal of children who are subjected to enforced disappearance, children whose father, mother or legal guardian is subjected to enforced disappearance or children born during the captivity of a mother subjected to enforced disappearance;

''( b )'' The falsification, concealment or destruction of documents attesting to the true identity of the children referred to in subparagraph ( a ) above.

2. Each State Party shall take the necessary measures to search for and identify the children referred to in paragraph 1 ( a ) of this article and to return them to their families of origin, in accordance with legal procedures and applicable international agreements.

3. States Parties shall assist one another in searching for, identifying and locating the children referred to in paragraph 1 ( a ) of this article.

4. Given the need to protect the best interests of the children referred to in paragraph 1 ( a ) of this article and their right to preserve, or to have re-established, their identity, including their nationality, name and family relations as recognized by law, States Parties which recognize a system of adoption or other form of placement of children shall have legal procedures in place to review the adoption or placement procedure, and, where appropriate, to annul any adoption or placement of children that originated in an enforced disappearance.

5. In all cases, and in particular in all matters relating to this article, the best interests of the child shall be a primary consideration, and a child who is capable of forming his or her own views shall have the right to express those views freely, the views of the child being given due weight in accordance with the age and maturity of the child.

== Part II ==

===Article 26===

1. A Committee on Enforced Disappearances (hereinafter referred to as "the Committee") shall be established to carry out the functions provided for under this Convention. The Committee shall consist of ten experts of high moral character and recognized competence in the field of human rights, who shall serve in their personal capacity and be independent and impartial. The members of the Committee shall be elected by the States Parties according to equitable geographical distribution. Due account shall be taken of the usefulness of the participation in the work of the Committee of persons having relevant legal experience and of balanced gender representation.

2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties from among their nationals, at biennial meetings of the States Parties convened by the Secretary-General of the United Nations for this purpose. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

3. The initial election shall be held no later than six months after the date of entry into force of this Convention. Four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the State Party which nominated each candidate, and shall submit this list to all States Parties.

4. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election once. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 2 of this article.

5. If a member of the Committee dies or resigns or for any other reason can no longer perform his or her Committee duties, the State Party which nominated him or her shall, in accordance with the criteria set out in paragraph 1 of this article, appoint another candidate from among its nationals to serve out his or her term, subject to the approval of the majority of the States Parties. Such approval shall be considered to have been obtained unless half or more of the States Parties respond negatively within six weeks of having been informed by the Secretary-General of the United Nations of the proposed appointment.

6. The Committee shall establish its own rules of procedure.

7. The Secretary-General of the United Nations shall provide the Committee with the necessary means, staff and facilities for the effective performance of its functions. The Secretary-General of the United Nations shall convene the initial meeting of the Committee.

8. The members of the Committee shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations, as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

9. Each State Party shall cooperate with the Committee and assist its members in the fulfilment of their mandate, to the extent of the Committee's functions that the State Party has accepted.

===Article 27===

A Conference of the States Parties will take place at the earliest four years and at the latest six years following the entry into force of this Convention to evaluate the functioning of the Committee and to decide, in accordance with the procedure described in article 44, paragraph 2, whether it is appropriate to transfer to another body - without excluding any possibility - the monitoring of this Convention, in accordance with the functions defined in articles 28 to 36.

===Article 28===

1. In the framework of the competencies granted by this Convention, the Committee shall cooperate with all relevant organs, offices and specialized agencies and funds of the United Nations, with the treaty bodies instituted by international instruments, with the special procedures of the United Nations and with the relevant regional intergovernmental organizations or bodies, as well as with all relevant State institutions, agencies or offices working towards the protection of all persons against enforced disappearances.

2. As it discharges its mandate, the Committee shall consult other treaty bodies instituted by relevant international human rights instruments, in particular the Human Rights Committee instituted by the International Covenant on Civil and Political Rights, with a view to ensuring the consistency of their respective observations and recommendations.

===Article 29===

1. Each State Party shall submit to the Committee, through the Secretary-General of the United Nations, a report on the measures taken to give effect to its obligations under this Convention, within two years after the entry into force of this Convention for the State Party concerned.

2. The Secretary-General of the United Nations shall make this report available to all States Parties.

3. Each report shall be considered by the Committee, which shall issue such comments, observations or recommendations as it may deem appropriate. The comments, observations or recommendations shall be communicated to the State Party concerned, which may respond to them, on its own initiative or at the request of the Committee.

4. The Committee may also request States Parties to provide additional information on the implementation of this Convention.

===Article 30===

1. A request that a disappeared person should be sought and found may be submitted to the Committee, as a matter of urgency, by relatives of the disappeared person or their legal representatives, their counsel or any person authorized by them, as well as by any other person having a legitimate interest.

2. If the Committee considers that a request for urgent action submitted in pursuance of paragraph 1 of this article:

''( a )'' Is not manifestly unfounded;

''( b )'' Does not constitute an abuse of the right of submission of such requests;

''( c )'' Has already been duly presented to the competent bodies of the State Party concerned, such as those authorized to undertake investigations, where such a possibility exists;

''( d )'' Is not incompatible with the provisions of this Convention; and

''( e )'' The same matter is not being examined under another procedure of international investigation or settlement of the same nature;

it shall request the State Party concerned to provide it with information on the situation of the persons sought, within a time limit set by the Committee.

3. In the light of the information provided by the State Party concerned in accordance with paragraph 2 of this article, the Committee may transmit recommendations to the State Party, including a request that the State Party should take all the necessary measures, including interim measures, to locate and protect the person concerned in accordance with this Convention and to inform the Committee, within a specified period of time, of measures taken, taking into account the urgency of the situation. The Committee shall inform the person submitting the urgent action request of its recommendations and of the information provided to it by the State as it becomes available.

4. The Committee shall continue its efforts to work with the State Party concerned for as long as the fate of the person sought remains unresolved. The person presenting the request shall be kept informed.

===Article 31===

1. A State Party may at the time of ratification of this Convention or at any time afterwards declare that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction claiming to be victims of a violation by this State Party of provisions of this Convention. The Committee shall not admit any communication concerning a State Party which has not made such a declaration.

2. The Committee shall consider a communication inadmissible where:

''( a )'' The communication is anonymous;

''( b )'' The communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of this Convention;

''( c )'' The same matter is being examined under another procedure of international investigation or settlement of the same nature; or where

''( d )'' All effective available domestic remedies have not been exhausted. This rule shall not apply where the application of the remedies is unreasonably prolonged.

3. If the Committee considers that the communication meets the requirements set out in paragraph 2 of this article, it shall transmit the communication to the State Party concerned, requesting it to provide observations and comments within a time limit set by the Committee.

4. At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party will take such interim measures as may be necessary to avoid possible irreparable damage to the victims of the alleged violation. Where the Committee exercises its discretion, this does not imply a determination on admissibility or on the merits of the communication.

5. The Committee shall hold closed meetings when examining communications under the present article. It shall inform the author of a communication of the responses provided by the State Party concerned. When the Committee decides to finalize the procedure, it shall communicate its views to the State Party and to the author of the communication.