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Access to rights for people with disabilities and their full and active participation in society

Report | Doc. 11694 | 08 August 2008

Committee
(Former) Social, Health and Family Affairs Committee
Rapporteur :
Mr Bernard MARQUET, Monaco, ALDE
Thesaurus

Summary

More than one person in every 10 suffers from some form of disability, giving a total worldwide of 650 million people, with an even higher ratio in Europe numbering up to 200 million. As the population ages and health care improves, the number of persons with disabilities in Europe grows, and it will continue to grow.

The year 2008 is when the UN Convention on the Rights of Persons with Disabilities entered into force (on 3 May). In order to provide equality of opportunity and full citizenship for people with disabilities, the Council of Europe Disability Action Plan should serve as a reference document for all new policies and actions carried out in the area of disability. All member states should use it as a practical policy tool to help them in the implementation in Europe of the UN Convention on the Rights of Persons with Disabilities.

Member states should participate in, promote and implement this Action Plan at national and local levels and commence the necessary reforms which will finally rectify the inequalities that persist notwithstanding numerous declarations of intent. They should include disability issues in every area of policy making, ensure that disability-related programmes are sufficiently resourced and move away from policies that directly or indirectly support and encourage segregation. In order for persons with physical or mental disabilities to be able to enjoy full citizenship, the report proposes a wide variety of measures in the fields of employment, education, transport, legal and social protection.

A Draft resolution

1. More than one person in every 10 suffers from some form of disability, giving a total worldwide of 650 million people, with an even greater ratio numbering up to 200 million in Europe alone. There is correlation between age and disability: as the population ages and health care improves, the number of persons with disabilities in Europe grows, and it will continue to grow.
2. The Parliamentary Assembly points out that the Council of Europe’s European Convention on Human Rights and Fundamental Freedoms protects all persons, including those with disabilities, and that Article 15 of the European Social Charter (1961, revised in 1996) explicitly guarantees to persons with disabilities the effective exercise of the right to independence, social integration and participation in the life of the community. A more recent and eagerly awaited text, the United Nations Convention on the Rights of Persons with Disabilities, came into force with effect from 3 May 2008. The Assembly welcomes this text, which gives a detailed description of the rights of persons, including children, with disabilities and will certainly contribute to the change of perception needed to improve the situation of persons with physical or mental disabilities.
3. The Assembly notes that, in practice, access to the rights of persons with physical or mental disabilities equally with those of healthy persons frequently remains wishful thinking and proves inadequate. It therefore welcomes the preparation by the Council of Europe of a Disability Action Plan for 2006-2015 (Recommendation Rec(2006)5 of the Committee of Ministers), which endeavours to find practical responses to the most serious and most common problems encountered by persons with disabilities and to foster equality of opportunities, and which advocates a number of measures to improve the situation of persons with disabilities in all aspects of everyday life.
4. The Assembly considers that the Council of Europe Disability Action Plan must serve as the reference document for any new disability-related policies and activities that are adopted and as a practical policy tool for Europe to promote the UN Convention on the Rights of Persons with Disabilities. It therefore invites all member states to participate in, and to promote and implement the Council of Europe Disability Action Plan at national and local levels and to begin the necessary reforms which will finally rectify the inequalities that persist notwithstanding numerous declarations of intent.
5. Moreover, the Assembly calls on member states through their national parliaments to regularly report to the Council of Europe on the implementation of the Disability Action Plan. It also invites the competent services of the Council of Europe to carry out a mid-term review of the Disability Action Plan 2006-2015 in 2010 by organising a European review conference.
6. The Assembly invites member states to include disability issues in every area of policy-making, to ensure that disability-related programmes are sufficiently resourced and to move away from policies that directly or indirectly support and encourage segregation in order for persons with physical or mental disabilities to be able to enjoy full citizenship. It is necessary to couple the fight against discrimination and violence with the adoption of positive measures. In order to speed up integration into society, the Assembly considers that certain key areas of action need to be given priority.
7. First, the Assembly invites member states to guarantee that persons with disabilities retain and exercise legal capacity on an equal basis with others by:
7.1 ensuring that their right to make decisions is not limited or substituted by others, but that measures are individually tailored and that they may be supported in their decision making by a support person or network;
7.2 taking the necessary measures to ensure that, in accordance with the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol, persons placed under guardianship are not deprived of their fundamental rights (not least the rights to own property, to work, to a family life, to marry, to vote, to form and join associations, to bring legal proceedings and to draw up a will), and, where they need external assistance so as to exercise those rights, they are afforded appropriate support, without their wishes or intentions being superseded;
7.3 providing sufficient safeguards against abuse of persons under guardianship including establishing mechanisms for periodic review of guardians’ actions and ensuring that legislation mandates compulsory, regular and meaningful reviews of guardianship in which the person concerned is fully involved and adequately legally represented.
8. The Assembly considers that in order to enable the active participation of persons with disabilities in society, it is imperative that the right to live in the community be upheld. It invites member states to:
8.1 commit themselves to the process of deinstitutionalisation by re-organising services and re-allocating resources from institutions to community-based services;
8.2 provide adequate and sustained assistance to families, above all humane and material (particularly financial), to enable them to support their disabled kin in the family home;
8.3 develop effective, independent inspectorates to monitor existing institutions.
9. With respect to employment, the Assembly invites member states to ensure to the maximum extent possible that persons with disabilities have access to sustainable employment on the labour market by:
9.1 offering incentives to work where they are able to do so; following an objective and individual assessment of the employability of persons with disabilities, they should be given support so that they can find appropriate employment or return to their previous job;
9.2 taking specific measures of an appropriate nature to facilitate the occupational integration of young adults with disabilities leaving the institutions where they have spent their whole lives;
9.3 protecting persons with disabilities against discrimination at every stage of the filling of a vacancy – from candidate selection to recruitment – and throughout their career;
9.4 offering genuine incentives to employers to take on persons with disabilities, inter alia through the use of recruitment procedures that ensure that job offers are effectively made to persons with disabilities and the making of reasonable adjustments to the workplace and/or working conditions;
9.5 taking into account in health and safety legislation and regulations the specific needs of persons with disabilities and by eliminating any provisions that discriminate against such persons;
9.6 implementing support measures such as sheltered or supported employment for persons in need of personalised assistance on the labour market; provision must also be made for persons with disabilities to be able to move from sheltered or supported employment to ordinary employment on the labour market.
10. In the education sphere, another priority field, the Assembly invites member states to:
10.1 grant equal access to education at every level to all persons with disabilities, and particularly to children with disabilities, whatever the nature and severity of these, and with particular attention given to the educational needs of children living in institutions;
10.2 discourage the prevalence of specialised schools which segregate students with disabilities and wherever practicable to promote inclusive education for all children with disabilities in mainstream schools;
10.3 support and promote vocational education and training throughout the lives of persons with disabilities; it is important that a transition should be possible between each stage of their education and between education and employment;
10.4 ensure that all syllabuses and teaching materials within the general education system are accessible to persons with disabilities;
10.5 guarantee access to non-formal education, so that persons with disabilities may develop skills which they could not acquire through ordinary education.
11. The Assembly invites member states to ensure that the rights of persons with disabilities are respected at every level of the education system, by taking any appropriate steps, including raising awareness of disability among very young children as part of the syllabuses taught at schools and institutions offering general education.
12. The Assembly considers that the creation of a society for all implies equal access for all citizens to the environment in which they live. It invites member states to make this environment genuinely accessible to persons with disabilities and to remove any obstacles that prevent them from playing a full part in everyday life and from enjoying their fundamental rights by:
12.1 including universal design principles in the training of all who will work in the occupations relating to built environments, such as architects, engineers and town planners, so as to simplify the lives of all by making the environment more accessible, usable and understandable;
12.2 removing any obstacles in public buildings and indoor and outdoor public areas and by ensuring that no new obstacles are created. Every newly built structure must conform to universal design principles: pavements, for instance, must not be laid without dropped kerbs;
12.3 giving particular attention to the safety of persons with disabilities when evacuation and emergency procedures are planned and carried out;
12.4 allowing the animals which assist or guide persons with disabilities free access to all public buildings and areas.
13. The Assembly considers that the accessibility of transport remains a priority area, notwithstanding genuine progress made in the implementation of accessible transport policies, especially relating to public transport. It invites member states to:
13.1 include disability awareness training in the standard training courses for public transport staff;
13.2 oblige public-service transport providers to supply services accessible to all users;
13.3 authorise and provide space in all public transport for the animals which assist or guide persons with disabilities (guide dogs for the blind, for instance);
13.4 provide adequate numbers of suitable parking spaces for the vehicles used by persons with disabilities whose mobility is reduced, and to make sure that these are used only by entitled persons.
14. The Assembly calls on member states to ensure equal access to health care for persons with disabilities and to encourage the consultation of persons with disabilities or their representatives in the taking of decisions relating to their health plan; care should be taken to ensure that:
14.1 all the relevant information is supplied to them in a comprehensible format;
14.2 priority is given to early intervention through the adoption of effective measures to detect, diagnose and treat disability at an early stage; appropriate instructions should be prepared on early detection, as should intervention measures;
14.3 attention is paid to the ageing of the population and the health consequences thereof, especially for persons with disabilities;
14.4 health care professionals in all member states accept the human and social rights model for persons with disabilities and do not focus solely on the medical aspect of disability;
14.5 with the participation of those concerned, full, accessible and appropriate rehabilitation services are available, so as to enable persons with disabilities to achieve maximum independence and to make the greatest possible use of their physical, mental, occupational and social capacities.
15. The growing numbers of elderly persons in Europe mean a greater likelihood of disability, reduced independence, increased use of various services and reduced quality of life. There are nevertheless many disability risk factors among elderly persons which can be altered, several of these linked to socioeconomic criteria and living conditions, but the lack of information about persons with disabilities acts as an impediment to the devising of relevant policies. The Assembly therefore considers that there is an urgent need for research into specific health care for elderly persons with disabilities and for related economic studies, and for:
15.1 research to be carried out into the environment-related risk factors, which have to date not been the subject of particular interest;
15.2 in-depth research to be carried out into ways of rehabilitating persons with disabilities and reintegrating them into the community;
15.3 encouragement to be given to applied scientific research, particularly relating to new technologies, apparatus and products which might foster an independent life for persons with disabilities and greater participation by them in community life.
16. Whereas the attitude of society, prejudice and fixed mindsets have been and remain the main obstacle to the access to rights for people with disabilities and their full and active participation in society the Assembly invites member states to:
16.1 step up their campaigns drawing public attention to, and providing information about, disability-related issues;
16.2 take legal action against and penalise discriminatory practices and unacceptable attitudes towards persons with disabilities;
16.3 disseminate examples of good practices in all spheres of everyday life, so as to make clearer – to all, and particularly to young people – the scope of this question in civil society, the working environment and the world of education;
16.4 ensure the full and active participation of persons with disabilities in all of these processes.
17. The Assembly invites the member states concerned to show their political will to speed up the access to rights for persons with disabilities by ratifying and by implementing:
17.1 the revised European Social Charter (accepting, inter alia, Article 15 on persons with disabilities) and the Additional Protocol to the European Social Charter providing for a system of collective complaints, which allows national and/or international non-governmental organisations to lodge complaints with the European Committee of Social Rights about violations by states of social rights;
17.2 the recent UN Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto, which also makes it possible for individuals and groups of individuals to assert their rights.

B Draft recommendation

1. The Parliamentary Assembly refers to its Resolution … (2008) on access to rights for people with disabilities and their full and active participation in society and recommends that the Committee of Ministers:
1.1 forward this resolution to the governments of member states and request them to take it into account when developing their national policies for people with disabilities and their full and active participation in society;
1.2 promote an exchange of best practices between member states on access to rights for people with disabilities and their full and active participation in society and on the implementation of the Council of Europe Disability Action Plan 2006-2015 at national and local levels;
1.3 encourage all member states to participate in the work of the European Co-ordination Forum for the Council of Europe Disability Action Plan (CAHPAH) and prolong the terms of reference of this Forum for the whole duration of the Action Plan;
1.4 instruct the competent services of the Council of Europe to carry out a mid-term review of the disability Action Plan by organising a European Review Conference;
1.5 instruct the Secretary General of the Council of Europe to look into the possibilities of implementing the specific recommendations of the Parliamentary Assembly for people with disabilities within the Organisation.

C Explanatory memorandum, by Mr Bernard Marquet

1 Introduction

1. The issue of access to rights for people with disabilities at the Council of Europe is almost as old as the institution itself. In 1957, the Parliamentary Assembly adopted Recommendation 118 on the conclusion of an agreement concerning reciprocal travel facilities for the war disabled when travelling abroad by railway. That recommendation never had much effect, mostly for financial reasons, but it was one of the first in a long line of measures the Council of Europe has taken to achieve the provision of equal opportunities for the disabled population of its member states.
2. The Council of Europe’s work on disability issues started in 1959 with the transfer of related activities, which had been started in 1948 by the Brussels Treaty Organisation, were then continued by the Western European Union (WEU) and finally, as from 1959, transferred to the Council of Europe to be carried out within the legal framework of the Partial Agreement in the Social and Public Health Field. The first resolution dates from 1960: ResAP(60)2 on rehabilitation of the disabled during employment. Until 2007, more than 60 policy recommendations and resolutions were elaborated. In 2007, the disability-related activities were transferred from the Partial Agreement in the Social and Public Health Field to the Programme of Activities/Ordinary Budget of the Council of Europe for all member states as from 1 January 2008.
3. In the last two decades, the Parliamentary Assembly has produced several disability-related recommendations. In addition to some more specific recommendations, such as on spinal cord injury (Recommendation 1560 (2002)) or sign languages (Recommendation 1598 (2003)), the Assembly has produced two general and comprehensive major disability recommendations: Recommendation 1185 (1992) and Recommendation 1592 (2003).
4. Assembly Recommendation 1185 (1992) was adopted one year after the first European ministerial conference on disability (Paris, 1991) and very much supported Recommendation No. R (92) 6 on a coherent policy for people with disabilities, adopted by the Committee of Ministers on 9 April 1992. Recommendation 1592 (2003) on the full social integration of people with disabilities was adopted during the European Year of People with Disabilities, when the Council of Europe organised the second ministerial conference on disability (Malaga).
5. In its latest major, comprehensive effort to ensure all human rights, full citizenship and the improvement of the quality of life of people with disabilities, the Council of Europe has created the Disability Action Plan 2006-2015, which deals not only with the most severe and commonly mentioned issues such as equal opportunities for persons with disabilities in employment, infrastructure or education, but recommends a comprehensive plan of action to improve the situation of persons with disabilities in all aspects of everyday life. Through this report, the rapporteur intends to give an overview of the evolution of the status of people with disabilities and the main issues currently at stake, which have been addressed in the Council of Europe Disability Action Plan.Note

2 Facts, figures, trends

6. The definition of “disability” is already a difficult task on its own. The most commonly cited definition is that of the World Health Organization (WHO) from 1980, which draws a three-fold distinction between impairment, disability and handicap.Note However, many specialist organisations and activists have noted that this definition is not precise and inadequate, which shows the complexity of the problem; and a lack of consensus from the very first step. WHO itself has realised that, which is why the organisation carried out a substantial revision of the ICIDH, with the help of the Council of Europe between 1987 and 1996, resulting in the new WHO International Classification of Functioning, Disability and Health (ICF), WHO, Geneva, 2001, which uses completely new and different definitions. Most national governments also use their own definitions for legislation purposes, and clearly, the political will and capacity to deal with this issue is reflected in this. One might say that governments can change and use their disability-definitions according to their own will and intentions.
7. It is important to highlight a significant change in the approach to the problem of disability. Historically, disability has been perceived through the so-called Medical Model, which basically sees the disabled person as the problem, and tries to adapt him/her to fit into the world as it is. As a result, curing or managing illness or disability revolves around identifying the illness or disability, understanding it and learning to control and alter its course. Therefore, the response to disability has been mainly one of social compensation through charity and the development of specialist caring services outside the mainstream of society. However necessary and well intentioned they might be, such responses have compounded the problem of exclusion and under-participation.
8. In the past two to three decades, this traditional approach has slowly started giving way to the Social Model of disability, which proposes that barriers, prejudice and exclusion by society (purposely or inadvertently) are the ultimate factors defining who is disabled and who is not in a particular society. Many, more recent measures have thus placed stronger emphasis on identifying and removing the various barriers to equal opportunities and full participation in all aspects of life. Lobbying by the disability community in several cases has led to changes in governments’ social care policy to one of civil rights which can empower disabled people to lead a self-determined life. The new approach is already being implemented in many countries, albeit in very different ways and at different speeds.
9. More than one person in 10 suffers from some form of disability; an estimated 650 million people are affected worldwide. Europe is even more affected; a recent surveyNote has shown that nearly 15% of the working age (16 to 64) population in 15 member states of the European Union reported some form of disability, while in the case of the 10 new states having acceded to the EU in 2004, this percentage amounts to almost 25%.
10. The results of the survey also highlighted the fact that there is a correlation between ageing and disability. Owing to the ageing of the population and improvements in health care, the number of people with disabilities in Europe is increasing and will continue to do so. A further point to note is that only 42% of people with disabilities are employed (compared to almost 65% of non-disabled people), and 52% of people with disabilities are economically inactive (compared to 28% of non-disabled people). The conclusion to be drawn is that people with disabilities, while experiencing difficulties in finding work, are a source of untapped potential for the development of economic growth. At the same time, an enormous economic burden is presented to society by disability and the costs related thereto (health and social care, labour costs, etc.).
11. The European Year of People with Disabilities in 2003 was a unique opportunity not only for disabled people all over Europe to let their voices be heard and to highlight issues of concern. It was also an occasion for national governments to step up their activities and update their legislation on the rights of people with disabilities, which many have indeed done. However, it is also obvious that due to the size and heterogeneity of the population concerned, it is difficult, if not impossible, to give one single solution to the tackling of the social and economic problem of the full integration of people with disabilities. Research should be carried out to find the direction for new measures and action should be taken in time to avoid the deterioration of the current situation.
12. These are the primary reasons why the Council of Europe is trying to contribute to the general development of this field and to help implement effective measures in order to achieve the equality of opportunities for people with disabilities, through its Disability Action Plan.

3 Overview of national and international instruments

3.1 Diverse and unequal efforts at national level

13. It is primarily the responsibility of national governments to protect their own citizens, and thus a number of national instruments also ensure the advancement of the rights of disabled people. Naturally it is almost exclusively developed, industrialised nations which can afford to propagate such values as the equalisation of rights of persons with disabilities.
14. The German Constitution, for example, was amended by parliament in 1994 to include a non-discrimination and equal opportunity clause for persons with disabilities. German law assures people with disabilities the right to use public transportation free of charge, allows for tax-free ownership of specialised vehicles, and provides several other benefits. The new law on equal treatment for people with disabilities has been implemented in tandem with earlier framework legislation.
15. Specific mention of people with disabilities is also made in the Portuguese Constitution, which sets out the principles of non-discrimination, although major obstacles still exist to the achievement of full citizenship, as specific policies do not exist to promote the integration of people with disabilities. In Finland, labour discrimination against disability/state of health is now punishable by a fine or imprisonment of up to six months. Denmark, one of the leading countries in regard to servicing the disabled population, created a Disability Council back in 1980, which was amended in 1993 by the Equal Opportunities Centre for Disabled Persons, a supervisory and consultative body financed by the Ministry of Social Affairs. The council has developed an effective dialogue with the relevant authorities to provide specific solutions to the problems it has documented through its work and its civil partners. As an example, an action plan on disability is to be funded with the aim of creating 800 to 1 200 new accommodation facilities for people with disabilities.
16. Slovakia is another example of a country that has made visible progress in the past few years; the Council for Citizens with Disabilities was set up a few years ago to consult on disability issues. This working group serves as a governmental advisory body regarding persons with disabilities. The minister of labour, social affairs and family chairs the council. Several NGOs have conducted public education campaigns on mental illness and worked co-operatively with the health ministry on the national health programme. The government sponsors a contest for rewarding the local government most accessible to persons with disabilities.
17. Some other examples, however, show the ambiguous nature and mixed results of certain governments’ policies on disability issues, or in some cases, a complete lack of effort from the state to improve the quality of disabled people’s lives.
18. In Turkey, legislation provides basic protection against discrimination in employment, education or health care. However, an international NGO, after having conducted a two-year study in the country, claimed the country lacked community-based support for mental patients and offered no alternative to state institutions where the mentally disabled persons were held separately from society in “prison-like incarceration”. Specific abuses listed in the report included: mental patients committed to psychiatric hospitals without judicial review; malnutrition and dehydration of patients; lack of rehabilitation and physical therapy; and excessive use of physical restraints.Note
19. France’s legislation on disability orders that all enterprises with at least 20 employees, public or private, have a minimum of 6% of disabled persons on their staff, yet in 2005 only 45% of the concerned establishments complied with this rule. The new Disability Law, introduced in early 2005, was aimed at reinforcing the financial sanctions to this rule as well as introduce several other measures, such as establishing the principle of a right to compensation by introducing a compensatory disability benefit, or the right for any child with a disability to attend their local primary or secondary school. Similar quota systems on the employment of disabled persons are in place in several other countries such as Poland, Italy, Spain, Austria and Germany, where severely disabled people also enjoy special protection against dismissal from their employment. However, many of these countries have encountered similar problems of employers appearing to prefer paying a fine rather than fulfilling the quota, the states being unable to enforce their laws.
20. In Hungary, while the government has recently announced plans to remove all barriers from some 9000 public buildings and government institutions by the year 2010, it has also introduced measures to reduce the compensation of petrol costs to families transporting their handicapped children to school, and cut tax benefits on specialised cars. The Hungarian Government is also currently reforming its civil code with particular focus on provisions concerning legal capacity and guardianship. It is working closely with NGOs, including people with disabilities, to ensure that the law provides for greater autonomy for persons with disabilities when it comes to decision making and exercising their rights, as advanced by the UN Convention on the Rights of Persons with Disabilities.
21. In an ideal case, such efforts to provide for the wellbeing of persons with disabilities are motivated by the traditions of a nation to look after those of its citizens who are not fully able to do so on their own. There are, however, several cases where this tradition is not sufficiently embedded in national culture, and thus policy on persons with disabilities is fuelled by various international instruments which the European and international communities constantly keep trying to improve and refine.

3.2 Need for leading instruments at international level

22. Besides several general human rights covenants and treaties, such as the Universal Declaration of Human Rights, or the International Covenant on Civil and Political Rights as well as instruments on other specific topics such as social or labour issues which also contain clauses on persons with disabilities, many instruments are specifically related to disability. The evolution in approach mentioned earlier (from the medical model towards the social/human rights model) can also be followed through these international instruments.
23. The United Nations began its efforts to provide specifically for the protection of the rights of persons with disabilities as early as 1950, when its Social Commission considered the reports “The social rehabilitation of the handicapped” and “The social rehabilitation of the blind”. The Declaration on the Rights of Disabled Persons, adopted by the General Assembly of the United Nations in December 1975, encouraged national and international protection of the rights of people with disabilities.
24. The latest and much-awaited United Nations Convention on the Rights of Persons with Disabilities, the first human rights convention of the 21st century, already has close to 100 signatories. The principal aim of the convention is to achieve a radical change of attitude towards people with disabilities all around the world, to allow all people with disabilities to live “dignified and productive lives”. The convention requires countries to adopt new anti-discrimination legislation and eliminate certain existing laws and practices in order to guarantee freedom from all forms of discrimination, exploitation and abuse for persons with disabilities, while protecting rights they already have. States parties will need to report regularly to a Committee on the Rights of Persons with Disabilities, responsible for monitoring the implementation of the convention. This convention is a major step for the international community, and time will tell whether it becomes the strong and effective instrument it is intended to be.
25. Hungary was one of the early signatories, in 2007, of the United Nations Convention on the Rights of Persons with Disabilities, along with 80 other states and the European Union. Yet of the 82 parties, only 44 signed the Optional Protocol to the convention which binds states accused of violating its terms to respond to a complaint through a proceeding before a special committee, thus weakening the vital protections the convention offers to people with disabilities. To date (May 2008), the number of signatories to the convention has risen to 127, and those to the Optional Protocol to 71 – and with 25 ratifications of the convention and 15 ratifications of the Optional Protocol it entered into force on 3 May 2008.
26. Meanwhile, the European Union did not have clear legal competence in the disability field until recently. EU policy on disability changed in 1996 with the adoption of the famous Communication by the Commission on Equality of Opportunity for Persons with Disabilities which was endorsed by the Council. The concrete result of this was manifested in the Treaty of Amsterdam (1997), which includes strengthened provisions on equal opportunities and combating social exclusion. Article 13 of the treaty enabled the EU to adopt directives combating discrimination on the ground of disability (among other grounds). The EU Charter of Fundamental Rights, proclaimed in 2000 in Nice, also has important disability provisions – notably Article 21 prohibiting any discrimination based on disability (among other grounds) and Article 26 on the integration of persons with disabilities although the charter does not have the status of a legally binding instrument
27. The most important European legal instrument on disability, however, is the Framework Directive on Employment Discrimination, the legal basis of which is Article 13 of the Treaty of Amsterdam, which has led to an unprecedented amount of disability law reform and case law all across Europe, including many non-EU states. To maintain momentum, the European Commission issued its own action plan, Equal Opportunities for People with Disabilities: a European Action Plan, in 2003. The plan proposes to intensify efforts at co-ordinating the rights-based approach to disability across a broad range of competencies, and shows similarities with the Disability Action Plan of the Council of Europe.Note
28. The European Commission has designated 2007 as “European Year of Equal Opportunities for All” as part of a concerted effort to promote equality and non-discrimination in the EU. After 2003, this should be another important opportunity to emphasise the importance of achieving equal opportunities for people with disabilities within this framework, although unfortunately the initiative has received little publicity so far.
29. For its part, the Council of Europe has been very active in the protection of the rights of people with disabilities. Its most important treaty, the European Convention on Human Rights, is one of the fundamental European instruments relevant in the disability context to date. The European Court of Human Rights, created in 1959, is the main body enforcing the European Convention on Human Rights. Individuals as well as NGOs and states can bring complaints before the Court against states parties, and the Court issues legally binding judgments. It has issued several landmark judgments on disability issues, continually establishing new standards and refining definitions regarding basic human rights, such as that of private and family life, inhuman and degrading treatment, or the right to life.
30. The European Social Charter (1961, revised in 1996) is its natural complement for the protection of social and economic human rights. Its Article 15 calls on states to ensure to persons with disabilities the effective exercise of the right to independence and social integration, including, specifically, in education, employment and community life. The revised Charter established a supervising mechanism to guarantee the respect of the rights and freedoms it sets out, by way of the European Committee of Social Rights. Collective complaints of violations of the Charter can be lodged with the committee, which is also responsible for examining the yearly national reports submitted by states parties and determining whether their legislation and practice are in line with the Charter.
31. The Committee of Ministers has also adopted a number of relevant resolutions and recommendations, such as the 1992 landmark Recommendation No. R (92) 6 on a coherent policy for people with disabilities, which contains policy principles for the rehabilitation and integration of people with disabilities. The recommendation has set benchmarks both internationally and nationally, thus prompting numerous amendments to legislation in the member states. Other key documents include Recommendation No. R (99) 4 on principles concerning the legal protection of incapable adults, Resolution ResAP (95) 3 on a charter on the vocational assessment of people with disabilities, Resolution ResAP(2001)1 on the introduction of the principles of universal design into the curricula of all occupations working on the built environment (“Tomar Resolution”), Resolution ResAP(2001)3 towards full citizenship of persons with disabilities through inclusive new technologies, Resolution ResAP(2005)1 on safeguarding adults and children with disabilities against abuse, Resolution ResAP(2007)3 “Achieving full participation through Universal Design”, and Resolution ResAP(2007)4 on the education and social inclusion of children and young people with autism spectrum disorders. The most important step since the revision of the Social Charter has been the Malaga Ministerial Declaration of 2003 on People with Disabilities, Progressing towards Full Participation as Citizens, followed by the corresponding Assembly Recommendation 1592 (2003) on towards full social inclusion of people with disabilities, which led to the adoption in 2006 of Recommendation Rec(2006)5 on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015 (or Disability Action Plan).
32. Yet legal instruments of the Council of Europe, especially the European Convention on Human Rights, do not guarantee a full exercise of the fundamental liberties due to disabled people such as the right to protection against poverty and social exclusion, the right to decent housing, the right to live in the community, the right to education, the right to work, and the right to personal and family privacy.
33. As an example, freedom of movement can be mentioned, which is a daily concern for people suffering from a motor handicap: it is difficult for them to have access to some public places when the latter do not benefit from adequate equipment. Moreover, children and adults with disabilities placed into residential institutions do not have the freedom to come and go as they please. A large proportion of these people remain confined in institutions segregated from the community for their whole lives.
34. As to the right to education, schooling for disabled children is not generalised: thousands of children are not registered in a classical teaching school nor in a specialised institution, which is in contradiction with Article 2 of Additional Protocol No. 1. Furthermore, as far as the respect of personal and family privacy is concerned, the freedom to have sexual intercourse is rarely recognised for the disabled either because of a physical handicap or because of a mental handicap which points to abuse. Thus, the disabled suffer from not being granted the same rights as anybody else.
35. One striking and prevalent example of how persons with disabilities are denied equal rights and equal recognition before the law is through the mechanism of guardianship. In most jurisdictions throughout Europe, persons who have been deemed to lack the requisite capacity to make decisions and take care of their needs are deprived of their legal capacity and placed under guardianship, and choice, decision making and power are handed over to a guardian who exercises these competences with little if any regard for the personal preferences of the person concerned. As a result, persons under guardianship are deprived of their most fundamental rights such as the right to choose their place of residence, to work, to marry, to execute wills, to refuse or consent to medical treatment, to vote, to exercise parental rights, to exercise property rights, and even the right to defend their interests or make complaints before courts. The European Court of Human Rights is only now beginning to recognise the gravity and all-encompassing nature of guardianship regimes and the preference of providing a “tailor-made response” to the individual circumstances of the person concerned (Shtukaturov v. Russia, No. 44009/05, 27 March 2008).
36. In addition, the European Court of Human Rights judged that there is a discrimination which is contrary to the convention “when, without objective and reasonable justification, the States do not apply a different treatment to persons in an appreciably different situation” (European Court of Human Rights, 6 April 2000, case 34369/97, Thlimmenos v. Greece). This is the case in particular for the imprisonment of disabled people, and also for compensation for the handicap itself: although compensation to the disabled by social benefits to help them pay for daily life is admitted, the compensation for the prejudice linked with birth when the handicap was foreseeable still remains legally in question.
37. It is so that “equal treatment” generally does not offer a sufficient protection to victims of a handicap. Even worse, equal treatment can sometimes be unfavourable to them when they claim measures adapted to their situation. The right to a different treatment is also measured meanly, knowing on top of it that, according to the decision in Thlimmenos v. Greece, it can be waived if the state, as party, can avail itself of “objective and reasonable justifications” for not offering differentiated measures to persons being in “appreciably different” situations, such as in the case of a handicap.Note
38. As Europe has become fully aware of the importance of guaranteeing equal rights for every one of its citizens, the values of equality and human rights upheld by the Council of Europe behove us, lawmakers, to concern ourselves with disability, this fundamental question of social cohesion, by proposing specific guidelines and measures to its member states.

4 Tasks for the near future

4.1 Key priority areas

39. With relevant international and regional instruments now in place which take into account country-specific conditions as well as transition processes that are taking place in various member states, the Council of Europe, as outlined in its Action Plan, now encourages its member states to take concrete actions at national level to develop and implement viable strategies to bring about full participation of people with disabilities in society and ultimately implement a mainstream approach to disability throughout all the policy areas.
40. Mainstreaming involves the integration of services for people with disabilities with those for other citizens. The goal is to move away from policies which support segregation towards integration in the mainstream wherever possible. However, mainstreaming does not preclude the existence of disability specific policies, where they are in the best interests of persons with disabilities.
41. Although the work to be done in order to achieve full citizenship for all people with disabilities is manifold, there are certain key priority areas, where action is of utmost importance and will lead directly to increased quality of life for people with disabilities.

4.1.1 Legal capacity

42. Both the UN Convention on the Rights of Persons with Disabilities and the Council of Europe Action Plan recognise that persons with disabilities have legal capacity on an equal basis with others. This means that persons with disabilities not only retain their capacity to hold rights, but also their capacity to act upon and exercise those rights, thus enabling their autonomy and active participation in society. Guardianship measures run against the new paradigm as they act to undermine a person’s independence by substituting decision making rather than providing for supported decision making.
43. Specific actions to be taken include:
  • provide alternatives to guardianship which are least restrictive and individually tailored;
  • establishing supported decision-making services which ensure that the person concerned retains full legal capacity whilst receiving services from a support person/network, and ensure that appropriate safeguards are in place to protect the person against abuse and exploitation;
  • maximise autonomy by ensuring that persons retain the right to make decisions in all areas of life in which they have functional capacity, specifically:
  • abolish the automatic deprivation of the fundamental rights of persons under guardianship to property, work, family life, marry, vote, associate, access courts, make a will;
  • require guardians to seek the least restrictive living arrangements for persons concerned.
  • prevent abuse of persons under guardianship and provide sufficient guarantees of the right of persons to meaningful participation in the guardianship process from the beginning of the process and for as long as the person is under guardianship. Specifically:
  • define in law sufficiently clear and specific bases for filing an application for declaring a person incapable which also specifies that a finding of incapacity is based on a demonstrable link between diagnosis and functional capacity in practice;
  • ensure that the person concerned is properly notified and has access to information about all proceedings related to the procedure for depriving the person of his or her legal capacity and ensuring that they are present and heard at these proceedings;
  • ensure that the persons concerned are consulted and that their wishes are given due weight and consideration at all stages including when appointing a guardian (with the right to challenge the appointment of a guardian);
  • establish a procedure for periodic review of guardians’ actions by an independent body that would be required to take into account information received from the adult concerned;
  • ensure that legislation mandates compulsory, regular and meaningful reviews of guardianship at which the person concerned is fully involved and adequately legally represented.Note

4.1.2 Community living

44. In order to enable active participation of persons with disabilities in society, it is necessary that they are given the opportunity to interact with the community. The practice of placing children and adults with disabilities into institutions undermines their inclusion as they are kept segregated from the rest of society and suffer serious damage to their healthy development and obstruction of the exercise of their rights. Deinstitutionalisation is a prerequisite to enabling people with disabilities to become as independent as possible and take their place as full citizens with the opportunity to access education and employment, and a whole range of other services.
45. Specific actions to be taken include:
  • closure of institutions starting with the blocking of new admissions into institutions and an entrenched shift from funding of institutions to reallocation of resources and reorganisation of services in the community;
  • focusing resources and policies on the establishment of alternatives to institutional living through development of community-based services and networks which are responsive to the needs of disabled children and adults, their families and caregivers;
  • providing adequate and sustained assistance to families to support their disabled kin in the family home;
  • the development of effective, independent inspectorates to monitor existing institutions;
  • increased and shared research on best practices within community settings;
  • the full and active participation of persons with disabilities in these processes.

4.1.3 Employment

46. Economic independence is paramount in providing the means for self-determination in many spheres of life, thus access to, and remaining in, employment is fundamental for people with disabilities. Policies to increase their activity rate need to be diversified – according to the employment potential of disabled people – and comprehensive, in order to address all the barriers to participation in the workforce.
47. Specific actions to be taken include:
  • disincentives to work should be removed from disability benefit systems in order to encourage beneficiaries to work when they can. This will not be possible without an objective and individual assessment which should identify their options regarding potential occupations, and help them find appropriate employment or reemployment;
  • protection against discrimination must be ensured in all stages of employment, from selection and recruitment, to all measures related to career progression;
  • employers should be encouraged to employ people with disabilities by applying recruitment procedures which ensure that job opportunities are positively made available to people with disabilities, and making reasonable adjustments to the workplace or working conditions;
  • health and safety legislation and regulations should take into account the needs of persons with disabilities and should not discriminate against them in any case;
  • support measures, such as sheltered or supported employment, should be in place for those people whose needs cannot be met without personal support in the open labour market, while measures should be taken to support people with disabilities to progress from sheltered and supported employment to open employment.
48. Ultimately, people with disabilities should be fully employed within the open labour market by combining anti-discrimination and positive action measures in order to ensure that people with disabilities have total equality of opportunity in the field of employment.
49. Integration into the world of work is part of the socialisation process for disabled persons. As Mr Cédric Fabre, Co-ordinator for the Haut-Rhin, Regional Office of Assistance to Disabled Apprentices, SARAH Alsace, says, “communication with work colleagues permits the mentally handicapped person to be aware of his identity and to be similar to others in this context. This opening up to others helps him to feel fulfilled. The mentally handicapped person is accustomed to functioning in a system based on interpersonal relations. He is able to discover a functional infrastructure.”Note

4.1.4 Education

50. All persons, irrespective of the nature and degree of their impairment, and regardless of whether they live in institutions or within the community, should have equal access to education at all levels. Mainstream and specialised structures should be encouraged to work together to support disabled people in their local communities, but this should be consistent with the goal of full inclusion.
51. Specific actions to be taken include:
  • moving away from specialised schools and the practice of separating students with disabilities which can result in greater marginalisation, and moving towards inclusive education in mainstream schools for all children with disabilities;
  • supporting and promoting lifelong learning for disabled people of all ages; it is important that effective transitions can be made between each phase of their education and between education and employment;
  • ensuring that all educational material and schemes provided through the general educational system are accessible to persons with disabilities;
  • ensuring access to non-formal education allowing disabled youth to develop needed skills otherwise unattainable through formal education.
52. It is extremely important to foster an attitude of respect for the rights of people with disabilities at all levels of the educational system, from the earliest possible age. This can be achieved by making disability awareness a key part of education programmes in mainstream schools and institutions.

4.1.5 The built environment

53. The universal goal of creating a society for all cannot be achieved unless all citizens have equal access to the environment they live in. Making the environment accessible to persons with disabilities and removing existing barriers which prevent them from fully participating in daily life and enjoying their fundamental rights is vital.
54. As promoted by Resolution ResAP(2001)1 on universal design, the principles of universal design should be introduced into the curricula of all occupations working on or with the built environment, such as architects, engineers or town planners, in order to simplify life for everyone by making the built environment more accessible, usable and understandable.
55. Specific actions to be taken include:
  • removing existing barriers from public buildings and public indoor or outdoor environments, and ensuring that no new ones are created. All new constructions should be in accordance with the principles of universal design, including, for example, new pavements, which should not be constructed without dropped kerbs;
  • due attention should be paid to the safety of people with disabilities in the design of emergency and evacuation procedures;
  • assistive animals accompanying persons with disabilities should have free access to all buildings and public areas.

4.1.6 Transport

56. The question of accessibility of the built environment overlaps with the issue of transport, another key area to be developed. Many states have progressed far in the implementation of accessible transport policies; however, much work remains to be done. The whole transport chain must be accessible in order to ensure that disabled people can benefit from public transport systems.
57. Specific actions to be taken include:
  • mandatory disability awareness training should be included as part of the standard training courses for persons engaged in public transport service provision;
  • public transport service operators should be encouraged to provide accessible services to all users;
  • assistive animals (that is, guide dogs) accompanying people with disabilities should be accommodated in all public transport;
  • parking facilities for disabled people with reduced mobility should be provided and protected.
58. Measures concerning transport in particular are omnipresent and benefit all users of public transport systems, including other groups with special needs, such as elderly people or parents with young children.

4.2 Further important points

4.2.1 Health care

59. People with disabilities have the same right as other members of society to good quality health services and relevant treatment and technology to ensure the best possible health. However, there are cases where disabled people require special health care services to improve the quality of their life – in these instances, the disabled person or their representative should be consulted and involved in the decision-making process regarding their personal care plan, and care should be taken that all relevant information is provided in a format understandable to the disabled person. This approach allows the individuals to make relevant decisions about their own health.
60. When planning and delivering health care services, priority should be given to early intervention; effective measures to detect, diagnose, and treat impairments at an early stage should be established, and effective guidelines for early detection and intervention measures should be developed. New policies should take into account the ageing of the population and the related health consequences, particularly for persons with disabilities.
61. Health care professionals in all member states should acknowledge the social and human rights model of disability and not focus solely on the medical aspect of disability.

4.2.2 Rehabilitation

62. Comprehensive rehabilitation services should be organised and extended in order to enable people with disabilities to attain their maximum independence and achieve their fullest physical, mental, social, and vocational ability. Rehabilitation programmes should be accessible and tailored to the individual needs of the disabled person, developed and delivered with the consent and participation of people with disabilities, their families and representative organisations. People who become disabled should be supported in returning to work at the earliest opportunity by involving both employers and employees in vocational rehabilitation.

4.2.3 Social and legal protection

63. In order to ensure the implementation of certain social rights such as the right to social security, the right to benefit from social welfare services or the right to social and medical assistance, people with disabilities must have equal access to social protection. To achieve the fullest possible independence and social integration of people with disabilities, policies should be promoted which point towards a shift from financial benefit dependency towards employment and independence. A coherent balance between social protection measures and active employment-oriented policies should be achieved in order to discourage inactive benefit dependency. In general, social services should take account of the specific needs of people with disabilities and their families.
64. Access to the legal system is another fundamental right of every citizen, including people with disabilities who in addition, to a greater or lesser extent, require additional safeguards in order to enjoy their rights to the full and to participate in society on an equal basis with other members. Barriers preventing persons with disabilities from accessing the legal system and legal mechanisms such as guardianship, must be eliminated by a range of measures and positive actions, including general awareness raising as well as specific training among the legal professions on human rights and disability issues. The principle of non-discrimination should govern national policies designed to provide effective access to justice for persons with disabilities on an equal basis with others.

4.2.4 Research

65. In addition to these prominent issues, member states must recognise that the dynamics of their population is changing, and comprehensive, diversified and specialised research is necessary on all disability issues in order for these demographic changes to be followed up adequately with regard to disability. The lack of data in relation to people with disabilities is recognised as a barrier to policy development.

4.2.5 Ageing

66. As most member states’ populations are ageing, special account should be taken of the fact that the growing number of elderly in Europe is giving rise to an increasing burden of old age disability; that of reduced independence, an increased use of various services and decreased quality of life. There is increasing evidence that many of the risk factors for old age disability, several of which are related to socioeconomic and living conditions, are modifiable. Thus, there is severe need for health services research and health economic studies related to old age disability, as well as research on environmental risk factors, which have not received sufficient emphasis in earlier research. Comprehensive research should also be carried out on rehabilitation measures aimed at recovery and reintegration in the community, and applied scientific research should be encouraged into new technologies, devices and products that can contribute to the independent living and participation of disabled people in society.

4.2.6 Awareness raising

67. Given the fact that most disabled people consider society’s attitude to be the biggest barrier to their full integration, awareness raising and the sensitisation of the general public to disability issues may be the most important task of all. In many cases, persons with disabilities are still confronted with unacceptable attitudes, and change cannot be brought about if people are not aware of the difficulties they face every day, often stemming from prejudice, fear or distrust. The fact that persons with disabilities have the same human rights as all other people must become a matter of fact to everyone, and emphasis must be placed on distributing examples of good practice in all areas of life to raise awareness in the community, working environment and education from the earliest age possible.

4.2.7 Involvement of people with disabilities

68. Above all, each of the actions outlined in this report should be discussed and implemented with the active involvement of people with disabilities. In this way the principle of full participation is put directly into practice contributing to the creation of a truly inclusive society.

5 Conclusions

69. The rapporteur believes that his report comes at a very historic moment: 2008 is the year the UN Convention on the Rights of Persons with Disabilities entered into force (on 3 May) and the year when at the Council of Europe all disability activities are carried out under the Programme of Activities/Ordinary Budget of all 47 member states and no longer within the limited framework of the Partial Agreement in the Social and Public Health Field (18 member states in 2007), when we have a Disability Action Plan and body to oversee the promotion, implementation, and follow-up of that Action Plan (“European Co-ordination Forum for the Council of Europe Disability Action Plan 2006-2015” (CAHPAH)).
70. The rapporteur is convinced that in order to provide equality of opportunity and full citizenship for people with disabilities, the Council of Europe Disability Action Plan should serve as a reference document for all new policies and actions carried out in the area of disability. All member states should use it as a practical policy tool to help them in the implementation in Europe of the UN Convention on the Rights of Persons with Disabilities.
71. Obviously, member states have the primary responsibility for carrying out these actions and policy changes at a national level, whereas at European level, the follow-up should focus on strengthening co-operation, exchange of information, experience and best practices in a structured way. In addition, national parliaments should request their national governments to regularly report to them (national parliaments) on the situation of people with disabilities in the country, also including information on the implementation of the Council of Europe Disability Action Plan at national level.

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Reporting committee: Social, Health and Family Affairs Committee.

Reference to committee: Doc. 10675, Reference No. 3262 of 30 June 2006.

Draft resolution and draft recommendation adopted by the committee on 23 June 2008.

Members of the committee: Mrs Christine McCafferty (Chairperson), Mr Denis Jacquat (1st Vice-Chairperson), Mrs Minodora Cliveti (2nd Vice-Chairperson), Mrs Darinka Stantcheva (3rd Vice-Chairperson), Mr Francis Agius, Mr Konstantinos Aivaliotis, Mr Farkhad Akhmedov, Mr Vicenç Alay Ferrer, Mrs Sirpa Asko-Seljavaara, Mr Jorodd Asphjell, Mr Lokman Ayva, Mr Zigmantas Balčytis, Mr Miguel Barceló Pérez, Mr Andris Berzinš, Mr Jaime Blanco García, Mr Roland Blum, Mrs Olena Bondarenko, Mrs Monika Brüning, Mrs Bożenna Bukiewicz, Mrs Karmela Caparin, Mr Igor Chernyshenko (alternate: Mrs Tatiana Volozhinskaya), Mr Imre Czinege, Mr Karl Donabauer, Mrs Daniela Filipiová, Mr Ilija Filipović, Mr André Flahaut, Mr Paul Flynn, Mrs Pernille Frahm, Mrs Doris Frommelt, Mr Renato Galeazzi (alternate: Mr Manfred Pinzger), Mr Henk van Gerven, Mrs Sophia Giannaka, Mr Stepan Glăvan, Mr Marcel Glesener, Mr Luc Goutry, Mrs Claude Greff (alternate: Mr Laurent Béteille), Mr Michael Hancock, Mrs Olha Herasym’yuk, Mr Ali Huseynov, Mr Fazail İbrahimli, Mrs Evguenia Jivkova, Mrs Marietta Karamanli, Mr András Kelemen, Mr Peter Kelly, Baroness Knight of Collingtree, Mr Haluk Koç, Mr Andrija Mandić, Mr Michal Marcinkiewicz (alternate: Mr Marek Wikinski), Mr Bernard Marquet, Mr Ruzhdi Matoshi, Mrs Liliane Maury Pasquier, Mr Donato Mosella, Mr Felix Müri (alternate: Mrs Doris Stump), Mrs Maia Nadiradzé, Mrs Carina Ohlsson, Mr Peter Omtzigt, Mrs Lajla Pernaska, Mrs Marietta de Pourbaix-Lundin, Mr Cezar Florin Preda, Mrs Adoración Quesada Bravo (alternate: Mrs Blanca Fernández-Capel), Mrs Vjerica Radeta, Mr Walter Riester, Mr Andrea Rigoni, Mr Ricardo Rodrigues, Mrs Maria de Belém Roseira, Mr Alessandro Rossi, Mrs Marlene Rupprecht, Mr Indrek Saar, Mr Fidias Sarikas, Mr Andreas Schieder, Mr Ellert B. Schram (alternate: Mr Kristinn Gunnarsson), Mr Gianpaolo Silvestri, Mrs Anna Sobecka, Mrs Michaela Šojdrová, Mr Oleg Ţulea, Mr Alexander Ulrich, Mr Mustafa Ünal, Mr Milan Urbáni, Mrs Nataša Vučković, Mr Dimitry Vyatkin (alternate: Mrs Svetlana Goryacheva), Mr Victor Yanukovych (alternate: Mr Ivan Popescu), Mrs Barbara Žgajner-Tavš, Mr Vladimir Zhidkikh, Ms Naira Zohrabyan.

NB: The names of the members present at the meeting are printed in bold.

The draft resolution and the draft recommendation will be discussed at a later sitting.

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