CRPD/C/22/D/18/2013 8.3 The Committee recalls that, under article 5 (1) and (2) of the Convention, States parties must ensure that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law, and must take all appropriate steps to ensure that reasonable accommodation is provided to promote equality and eliminate discrimination. The Committee also recalls that discrimination can result from the discriminatory effect of a rule or measure that is not intended to discriminate, but that disproportionately affects persons with disabilities. 19 In the present case, the Committee notes that part II.A of the Northern Territory Criminal Code is intended to address the situation of persons with intellectual and psychosocial impairments who are found unfit to stand trial on that basis. The issue before the Committee is therefore whether the differential treatment provided under part II.A is reasonable or whether it results in the discriminatory treatment of persons with disabilities. 8.4 The Committee notes that, under part II.A of the Northern Territory Criminal Code, a person found unfit to stand trial can be kept in custody for an unlimited period of time because, as provided by section 43ZC of the Code, a supervision order is for an indefinite term, subject to conditions regarding its variation, revocation or major review. The person subject to a supervision order will be presumed to be unfit to stand trial until the contrary is found. In the meantime, he or she cannot exercise his or her legal capacity before the courts. In the present case, the author was charged in October 2008 with common assault in a circumstance of aggravation. In May 2009, he was declared unfit to stand trial. A custody order was made and the author was detained at Alice Springs Correctional Centre until April 2013, when he was placed in a Secure Care Facility. Eventually, on 9 February 2017, he was relocated to a community residence. The Committee notes that, throughout the author’s detention, the whole judicial procedure focused on his mental capacity to stand trial without giving him any possibility to plead not guilty or to respond to the charges against him. The Committee also notes that, according to the information available, the State party did not analyse which measures could have been adopted to provide the author with the support and accommodation he required to exercise his legal capacity, nor did it take any measures in that regard. As a result of the application of part II.A of the Northern Territory Criminal Code, the author was not heard at any stage of the proceedings, depriving him of his right to a fair trial and of the protection and equal benefit of the law. As clarified in paragraph 16 of the Committee’s general comment No. 6 (2018) on equality and non-discrimination, the term “equal benefit of the law” means that States parties must eliminate barriers to gaining access to all of the protections of the law and the benefits of equal access to the law and justice to assert rights. The Committee therefore considers that part II.A of the Criminal Code resulted in the discriminatory treatment of the author’s case, in violation of article 5 (1) and (2) of the Convention. 8.5 The Committee notes the author’s allegation that his detention in a secure care facility established only for persons with disabilities amounted to a violation of article 5. The Committee also notes the State party’s submission that the author, who was subject to a custodial supervision order, was housed in that new purpose-built facility and received a very high level of disability-related care and support services. The author stayed in the facility until 9 February 2017, when he relocated to a community residence where he receives specific support. In that connection, the Committee notes that, according to the information on file, the author was not consulted at any stage of the procedures regarding his custody and accommodation. Taking note of the above, the Committee recalls that the Convention recognizes the right not to be obliged to live in a particular living arrangement on account of one’s disability and that the institutionalization of persons with disabilities as a condition to receive public sector mental health services constitutes differential treatment on the basis of disability and, as such, is discriminatory. 20 Therefore, the Committee considers that confining the author to live in a special institution on account of his disability from April 2013 to February 2017 amounted to a violation of article 5 of the Convention. 8.6 As regards the author’s allegations under articles 12 (2) and (3) and 13 (1) of the Convention, the Committee notes the author’s submission that the decision that he was 19 20 S.C. v. Brazil (CRPD/C/12/D/10/2013), para. 6.4, and Noble v. Australia, para. 8.3. General comment No. 6, para. 58. 13