C Explanatory
memorandum by Ms Quintanilla Barba, rapporteur
1 Introduction
1. Disability can affect all of us. Ban Ki-moon, Secretary
General of the United Nations, has rightly pointed out that disability
is part of the human condition and that almost everyone will be
temporarily or permanently impaired at some point in life. People
with disabilities currently represent 10% to 15% of the population
in Europe. With the ageing of Europe’s population, the number of
people with disabilities is likely to increase substantially in
the years ahead.
2. People with disabilities are confronted with a multitude of
challenges in their daily life, as well as multiple forms of discrimination,
which affect their access to basic rights and services and their
full enjoyment of life in society. Over the past decade, special
attention has been given to their rights, culminating in the adoption
and subsequent entry into force of the United Nations Convention
on the Rights of Persons with Disabilities. The convention marks
a paradigm shift in that it looks at disability from the perspective
of human rights and inclusion rather than from the near-exclusive
perspective of health and social security.
3. However, although a number of States have in recent years
implemented specific policies, the situation of people with disabilities
is not perceived as a priority by the governments of Council of
Europe member States. It should also be noted that budget cuts resulting
from the economic crisis affecting European States have an impact
on social programmes and investment intended to facilitate the participation
of people with disabilities in the life of the community.
4. Consequently, there is a strong feeling that much remains
to be done. The rights of people with disabilities are still all
too often invisible to the rest of society. In this report, I would
like to highlight three issues which clearly illustrate this lack
of visibility: access to employment, legal capacity and violence
towards people with disabilities. This report does not claim to
be exhaustive but to raise awareness, through concrete examples,
of the urgent need to guarantee people with disabilities their most
basic rights.
5. The general reference in this report to “people with disabilities”
reflects the emphasis placed on individual rights and the barriers
to the exercise of those rights. It should also be noted that people
with disabilities are not a homogeneous group. There are different
types (physical, intellectual, sensory, psycho-social) and degrees
of disability. Ignoring the differences can be a source of discrimination
when identical policies are applied to people who are not in the
same situation.
2 State
of play
6. The international legal framework has expanded considerably
in recent years, with the adoption of numerous instruments and programmes
of action promoting the rights of people with disabilities. However, their
implementation by States remains insufficient.
2.1 The international
legal framework for disability rights
2.1.1 The United Nations
Convention on the Rights of Persons with Disabilities
7. The UN Convention on the Rights of Persons with Disabilities
may certainly be described as an historic treaty. It is the first
global treaty on the rights of people with disabilities. The convention,
which came into force in 2008, was the outcome of a long process
embarked upon in the 1970s and of a high degree of mobilisation by
disability rights associations.
Note With
151 States Parties as at 25 November 2014, it is one of the most
widely ratified of the United Nation’s human rights treaties.
8. The convention does not create new rights or rights specific
to people with disabilities but adapts existing fundamental rights
to the situation of people who have disabilities in order to ensure
that they have full enjoyment thereof. It contains a definition
of disability which marks a fundamental change of approach, with
the emphasis no longer on what people cannot do but on the fact
that it is the barriers encountered by those persons which create
the situation of disability. The convention also translates into
legal terms the disability rights movement’s slogan: “Nothing about
us without us” by obliging the States Parties to engage in close
and active consultation with the organisations representing people
with disabilities when they develop and implement legislation and
policies in order to apply the convention.
9. The convention set up a committee comprising 18 independent
experts, which is responsible for monitoring the implementation
of the convention. Where the States which have ratified the Optional
Protocol to the convention are concerned, the committee may also
receive and examine individual and collective petitions.
10. The UN Convention is currently the reference instrument in
the field of disability, in the light of which measures taken at
international and national levels are evaluated. All the Council
of Europe member States which have not yet done so should ratify
the convention.
Note
2.1.2 Council of Europe
instruments and initiatives
11. The Council of Europe has been very active in upholding
and protecting the rights of people with disabilities through various
instruments, among which I would mention the European Convention
on Human Rights (ETS No. 5) and its Protocol No. 12 (ETS No. 177),
under which disability is a prohibited ground of discrimination,
and the European Social Charter (revised) (ETS No. 163), Article 15
of which affirms the right of persons with disabilities to independence,
social integration and participation in the life of the community.
12. 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
was adopted by the Committee of Ministers in April 2006. It contains
a set of principles and actions that member States are invited to
apply in their policies, legislation and practices. The Action Plan
involves regional implementation of the rules and principles set
out in the UN Convention on the Rights of Persons with Disabilities.
The completion of the Action Plan in 2015 should afford an opportunity
to take stock of the measures adopted by the Council of Europe member
States in this field and to draw up a new post-2015 action plan
on that basis.
2.1.3 European Union
instruments and initiatives
13. The European Union is also very active in the field
of disability rights, in particular through its 2010-2020 strategy
for people with disabilities. In December 2010, it also ratified
the UN Convention on the Rights of Persons with Disabilities, giving
rise to a number of specific legal obligations. In particular, this
requires the European Union to adopt legislation consistent with
the convention, which is binding on European Union member States
and compliance with which is supervised by the Court of Justice
of the European Union.
14. The European Union is currently drafting a European Accessibility
Act. However, its finalisation by the European Commission, initially
scheduled for 2012, has been postponed several times. The adoption
of such an act would be an important step with a view to equality
and inclusion for people with disabilities, provided that it presents
a minimum level of ambition and has added value compared to the
rules and regulations already in force in European Union member
States.
2.2 Measures taken
at national level
15. It lies primarily with member States to adopt an
appropriate legal framework and implement measures to ensure equal
rights and their effective enjoyment by all persons within their
jurisdiction. Many laws, policies and measures have been adopted
by Council of Europe member States and progress can be noted in
various sectors. However, their overall implementation and their
impact in ensuring equal rights and the inclusion of people with
disabilities remain insufficient for various reasons, in particular
the lack of financial resources earmarked for disability, the lack
of political resolve and the persistence of legal barriers to the
full participation of people with disabilities in public life.
16. The state of implementation of the Council of Europe Action
Plan by member States shows that member States by no means comply
with the action lines identified by the Committee of Ministers in
2006. The obstacles to the full participation of people with disabilities
remain and the need to improve their situation is often not considered
to be a priority. For example, with regard to the accessibility
of public buildings, in April 2014 the French Government decided
to defer the obligation to bring public buildings up to standard
to beyond 2015, the deadline fixed by the law of 11 February 2005
on equal rights and opportunities, participation and citizenship
of persons with disabilities. In France, only 15% of public buildings
meet accessibility standards for people with disabilities,
Note despite the pledges made by the
public authorities over the last few decades.
17. Significant measures have been taken in recent years in the
Russian Federation, which is home to 13 million people with disabilities
according to official statistics. For instance, the Federal Law
on Social Protection of Persons with Disabilities includes many
safeguards. It has, however, been noted that there is a lack of
clear enforcement mechanisms at the federal level whereby enforcement
is left up to the discretion of regional and city governments.
Note In spite of
the law and the ambitious accessible environment plan (2012-2015), people
with disabilities all too often remain confined to their homes because
public and private buildings and transport facilities are not accessible.
Moreover, people with disabilities in Russia are faced with regional inequality,
as their situation varies greatly depending on the regions where
they live.
18. In Romania, the situation of people with disabilities is of
particular concern. The Commissioner for Human Rights of the Council
of Europe recently noted that many persons with disabilities are
isolated from society in a growing number of institutions, where
they often face inhuman and degrading treatment and, in some cases,
deliberate abuse.
Note The
particularly dramatic case of a young man with a severe mental disability, who
was an orphan and HIV-positive, who died in a psychiatric hospital,
was brought before the European Court of Human Rights. The Court
unanimously concluded that there had been a violation of Article 2
of the convention on the right to life because of his placement
in a psychiatric hospital and the absence of appropriate care and
treatment.
Note The
living conditions of people with disabilities in Romania are frequently
criticised. The national authorities must take robust measures to
remedy this appalling situation and the Romanian Parliament must
ensure that Romania’s commitments to international institutions
are translated into practical action.
19. The economic crisis and the austerity measures currently being
taken in Europe have a particular impact on people with disabilities
and place a heavy economic burden on their families. A study of
the impact that these measures have on people with disabilities
in the European Union has shown that the risk of poverty is 21.1% for
people with disabilities compared to 14.9% for persons without disabilities.
Note For women with disabilities, this risk
is two to three times higher depending on the country. The Commissioner
for Human Rights has also pointed out that “austerity budgets have
restricted the access of people with disabilities to community living, education,
primary care and assistance, posing barriers to de-institutionalisation”.
Note
20. In such conditions, the implementation of international and
national instruments promoting the rights of people with disabilities
is a particularly onerous task. Nevertheless, we must not lose sight
of the objective of full equality and inclusion of people with disabilities.
Each Council of Europe member State has a duty to comply with its
commitments and to ensure that people with disabilities are not
treated as second-class citizens.
3 Invisible citizens:
difficulties for people with disabilities in participating in public
life
21. In order for people with disabilities to be fully
integrated they must be able to participate in public life. However,
significant barriers prevent their full participation and effective
exercise of their rights, making people with disabilities invisible
to the general public.
3.1 Accessibility:
the main prerequisite for full inclusion in the community
22. Accessibility is the main prerequisite for inclusion
in the community. It is obvious that the full inclusion of people
with disabilities requires first and foremost that they have access
to public facilities. However, accessibility does not only mean
access to buildings. The aim is also to ensure full inclusion in
the community by ensuring that they have access to education, employment,
cultural and sporting activities, the political sphere, etc. This
is the approach taken by the UN Convention on the Rights of Persons
with Disabilities, which is based on the idea that disability results
from the interaction between people with impairments and attitudinal and
environmental barriers that hinder their full and effective participation
in society.
23. The Council of Europe introduced at European level the concept
of “universal design”, which has become a recognised benchmark in
the field of disability and intergenerational facilities. Universal
design is a strategy which aims to make the design and composition
of different environments, products, communication, information
technology and services accessible and understandable to, as well
as usable by, everyone, without the need for adaptation or specialised
solutions. This concept is also at the heart of Article 9 of the
UN Convention on the Rights of Persons with Disabilities concerning
accessibility.
24. It is often argued that the implementation of universal design
is too costly given the economic and financial difficulties facing
European countries. I believe the issue should be approached from
a different angle. Council of Europe member States have entered
into a number of commitments in terms of accessibility, both at
national level and in organisations such as the Council of Europe,
the United Nations and the European Union. Adapting the built environment
to make it accessible to people with disabilities is undeniably
expensive and entails a substantial amount of work. I therefore
firmly believe that such costs could be cut to a minimum, if not
avoided, if universal design were applied from the very moment buildings,
services and other products are designed.
25. Public procurement policies should include conditions of accessibility.
As the United Nations Committee on the Rights of Persons with Disabilities
points out in its general comment on Article 9 on accessibility,
it is unacceptable to use public funds to create or perpetuate the
inequality that inevitably results from inaccessible services and
facilities.
Note
26. One example of good practice is provided by the European Union,
which, in 2014, reviewed its legislation on the award of public
contracts and included criteria of accessibility for people with
disabilities or design for all users among the technical specifications
that have to appear in public tenders. Similarly, the legislation
of the European Union concerning the granting of European structural
and investment funds (ESIF) for the period 2014-2020 stipulates
that all products, goods, services and infrastructures that are
open or provided to the public and are co-financed by the ESI Funds
must be accessible to all citizens, including those with disabilities. Accessibility
for people with disabilities is therefore now one of the criteria
examined by the European Commission prior to allocating funding
for a project.
27. The Council of Europe Development Bank also funds numerous
projects for the conversion of buildings in the fields of health
and education to make them accessible to people with disabilities.
A further step could be taken by including the criteria of accessibility
in the conditions for the granting of loans by the Bank, as the Parliamentary
Assembly already requested in
Recommendation 1592
(2003) “Towards full social inclusion of persons with disabilities”.
28. Accessibility is a key principle, as it determines the effective
enjoyment of rights. Without accessible transport or accessible
buildings, people with disabilities cannot exercise their right
to education or employment. Accessibility also enables people with
disabilities to break out of the situation of invisibility in which
our societies all too often force them to live. I firmly believe
that full participation in the life of the community, in schools
and work is not only a right but also a means of changing our perception
of disability.
3.2 People with disabilities
and employment
29. I have already pointed out that the economic crisis
and austerity measures are having a particular impact on people
with disabilities to the extent that they have become part of the
“vulnerable groups” category. Account must also be taken of the
fact that the families of people with disabilities have to bear
heavy financial costs to enable them to perform everyday acts like
other people. It has been noted that the level of employment of
people with disabilities within the European Union has dropped,
that their employment contracts are more likely to be insecure and
that they are paid less than people without disabilities.
Note In a recent report on
the Russian Federation, Human Rights Watch quoted a truck driver
with a physical disability who summed up his employer’s attitude
towards him as follows: “He told me he is taking on extra responsibility
in hiring me, and therefore he cannot pay me as much.”
Note
30. According to a study by the Organisation for Economic Co-operation
and Development (OECD), the employment rate of people with disabilities
in the organisation’s member States in 2010 was approximately 44%
(compared to 75% for people without disabilities).
Note The figure is, however,
lower in the case of women with disabilities, who are more vulnerable
because they are the victims of multiple discrimination which is compounded
when account is taken of factors such as being women, being disabled
and living in rural areas. The figure also varies depending on the
type of disability, and people with intellectual or psycho-social disabilities
have the lowest employment rates. Moreover, the overall figure must
not hide the great disparities between countries. By way of example,
the employment rate of working-age people with disabilities in Serbia in
2011 was 13% according to the United Nations Development Programme
(UNDP), while in 2012 it was 18% in Hungary and 20% in the Russian
Federation according to those countries’ official statistics.
Note The difficulties people
with disabilities have in finding and holding down employment make
them and their families poorer, but also involve costs for governments
in terms of social assistance and protection. In a period of economic
crisis, it is therefore in States’ interests to identify the barriers
to the employment of people with disabilities and measures for giving
them greater access to the labour market.
31. There are many reasons for people with disabilities’ limited
access to the labour market. They may involve the lack of positive
measures to promote the employment of people with disabilities,
the persistence of stereotypes about the ability of people with
disabilities to work or the lack of support services or appropriate means
of transport to workplaces. The low employment rate of people with
disabilities is also the result of their limited access to higher
education and vocational training.
32. The goal should be the participation of people with disabilities
in the ordinary labour market. Adjustments sometimes have to be
made for that purpose. The principle of reasonable accommodation
is a key concept for the equality of people with disabilities. It
is included in the UN Convention on the Rights of Persons with Disabilities
and also in the European Social Charter (revised) and the European
Union directive on equal treatment in employment and occupation.
It requires employers to take the necessary measures to ensure equal
treatment for workers with disabilities, provided that this does
not impose an undue burden on the employers. The measures can apply
in material or organisational terms. They may involve the adaptation
of workstations or reductions in working hours.
Note
33. In some countries, companies which hire workers with disabilities
receive assistance for carrying out the necessary adjustments to
workstations or covering the cost of travel to work, for instance
in Luxembourg. Assistance with travel costs can also be paid directly
to the workers, as is the case in the United Kingdom under the government’s
Access to Work programme. These measures are important, especially
those which enable workers to travel to their workplaces, as workers
with disabilities are faced with costs which do not affect other workers
and can weigh heavily on their incomes if they have to meet them
themselves.
34. In Spain, the Spanish National Organisation for the Blind
(ONCE) and its Foundation for Co-operation and the Social Inclusion
of the Disabled have developed good practices and have succeeded
in ensuring the full independence and social inclusion of a large
number of people with disabilities through training, job creation and
accessibility schemes. Over a 25-year period, the foundation’s activities
have generated over 80 000 jobs for people with disabilities and
raised their profile within Spanish society as citizens who add
value.
35. Quotas are among the incentives which are often mentioned.
They involve making provision for a given percentage of workers
with disabilities in companies. Very many European countries have
introduced quotas in their legislation. In Spain, a quota of 7%
is in place in the public sector and this represents one of the
highest in Europe. However, the way they operate varies greatly
from country to country, which makes any comparison very difficult,
especially since disability is not defined in the same way in all
countries. Differences may also exist within individual countries.
In Russia, for instance, the legislation provides for the introduction
of quotas in companies with more than 35 employees, but leaves it
up to regions to set the rate for the quota, which varies from 2%
to 4% depending on the towns and regions. Similarly, the quotas
for the employment of people with disabilities in the public service
in Belgium vary between the different communities and regions. For
instance, the figure is 2% in Brussels, 4.5% in Flanders and 3%
at federal government level. In contrast, there is no specific requirement
concerning employment in the private and public sectors in the German-speaking community.
Any statistics which are available are therefore hard to compare.
36. Employment quotas are usually coupled with financial incentives
for companies, for instance tax relief, and sometimes with penalties
for those which do not comply. In Austria, the Federal Act on the
Employment of People with Disabilities provides for a quota of 4%
and the payment of fines in the event of non-compliance. In 2010,
the compliance rate by firms was 22.8% in the private sector and
66% in the public sector. This means that the majority of firms
prefer to pay fines rather than take on people with disabilities.
The same situation applies in many other European countries.
37. Other measures exist such as the prohibition of discrimination
on the grounds of disability and the protection of workers with
disabilities against dismissal. The European Committee of Social
Rights requires such measures on the part of the States Parties
to the European Social Charter (revised), pursuant to Article 15,
paragraph 2. However, the committee makes frequent findings of non-conformity.
Note This
is often the result of inadequate information or the lack of statistical
data on the employment of people with disabilities. Moreover, some
States Parties to the European Social Charter (revised) have not
agreed to be bound by Article 15, paragraph 2 (Albania, Austria,
Azerbaijan, Bosnia and Herzegovina, Bulgaria and Georgia). I urge those
States to accept the provision without delay.
38. Assessment of the various incentive measures is inconclusive
and it is impossible to attribute a systematic positive effect in
terms of the employment of people with disabilities to a particular
type of measure. An employer may, for instance, prefer not to accept
financial assistance if the bureaucratic procedures are too cumbersome.
The International Labour Organization has noted that a range of
measures must be taken to address the various obstacles encountered
by people with disabilities in the employment sector and that the active
involvement of employers in these measures plays a large part in
their success.
Note
39. Awareness-raising and information for employers are vital
in order to overcome the many negative stereotypes relating to disability.
The Office of the United Nations High Commissioner for Human Rights
has found that people with disabilities are often seen as unfit
for working life and also that the positive measures taken to promote
their employment, for instance quotas, may send a message that they
are hired solely on the basis of their disability rather than their
professional ability.
Note
40. A study by the International Labour Organization has highlighted
various good practices in terms of disability awareness-raising
in the workplace. For instance, these may include compulsory disability
training for managerial staff, the appointment of a person responsible
for hiring staff with disabilities and helping them to adapt their
workstations and the preparation of disability guides and their
distribution to the entire workforce.
Note All
these measures have had very positive results for the companies,
in particular in terms of their image with staff and customers.
Lastly, I should like to mention the British employers’ organisation,
the Business Disability Forum, which was set up in 1986 and supports,
advises and trains employers in terms of hiring and relations with
workers with disabilities, as well as with consumers and customers
with disabilities. The organisation has developed disability standards
for companies and provided input for the 1996 and 2010 British legislation
on equality and non-discrimination.
41. In conclusion, I should like to underline that it is necessary
that member States put in place policies for people with disabilities
to maintain and increase their employment rate as a key element
of social participation. These policies should provide tools that
promote active inclusion, sustainability and quality of employment, cohesion
and territorial development. In addition, States should take measures
complementing the European legislation on equal opportunities and
non-discrimination, including the collection of statistical data
on the employment rate of people with disabilities compared to people
without disabilities. In this connection, it should be borne in
mind that almost a third of workers develop a disability in the
course of their working lives.
Note It is therefore
in everybody’s interest to take measures to enable people to enter
and stay in employment and combat stereotypes.
3.3 The legal capacity
of people with disabilities
42. The legal capacity of people with disabilities is
a fundamental issue, since it largely determines the enjoyment and
exercise of their rights. Legal capacity is defined as the capacity
to acquire and exercise a right.
Note When people have been deprived of their
legal capacity, they may no longer exercise rights, and it is a
third party who takes decisions concerning them on their behalf.
Without the legal capacity to exercise them, the fundamental rights
guaranteed by the European Convention on Human Rights and the UN
Convention on the Rights of Persons with Disabilities are just an
empty shell.
43. The Council of Europe Action Plan to promote the rights and
full participation of people with disabilities in society and the
UN Convention on the Rights of Persons with Disabilities both state
in identical terms that “[p]eople with disabilities have the right
to recognition everywhere as persons before the law”.
Note Similarly,
in
Resolution 1642 (2009) on access to rights for people with disabilities and
their full and active participation in society, the Parliamentary
Assembly invited member States to ensure that people with disabilities
have legal capacity and exercise it on an equal basis with other
members of society, particularly by ensuring that their right to
make decisions is not limited or substituted by others, that measures
concerning them are individually tailored to their needs and that
they may be supported in their decision-making by a third person.
44. The European Court of Human Rights has on several occasions
ruled on cases relating to legal capacity. In its judgments in the
cases of
Shtukaturov v. Russia (2008)
and
Salontaji-Drobnjak v. Serbia (2009),
the Court took the view that, in the light of the facts of the case,
the complete incapacity imposed on applicants who were suffering
from mental disorders was disproportionate to the aim pursued and
constituted an infringement of their right to respect for private
life as protected by Article 8 of the European Convention on Human
Rights. Furthermore, the Court found, in its judgment in the case
of
Stanev v. Bulgaria (2012),
that deprivation of legal capacity, even partial, has serious implications
in terms of access to the courts, and it pointed out that the right to
apply to a court for review of a declaration of incapacity is one
of the most fundamental rights for the persons concerned. Lastly,
in a recent judgment, the Court held that deprivation, even partial,
of legal capacity should be a measure of last resort, applied only
where other, less restrictive, measures have been unsuccessfully attempted.
Note
45. In 2012, the Commissioner for Human Rights noted that the
European arrangements relating to legal capacity were out of date
and needed urgent reform to bring them into line with the UN Convention.
Note He also called for the abolition
of the mechanisms providing for full incapacitation and plenary
guardianship and for the introduction of supported decision-making
mechanisms.
46. No movement in the direction recommended by the different
instruments and international institutions can be observed today.
The great majority of Council of Europe member States have a guardianship
system which is applied to persons with intellectual or psychosocial
disabilities. Only two European countries, Germany and Sweden, have
abolished their systems of guardianship and put other, less intrusive,
forms of support for people with disability in place instead.
Note Some
countries, such as Cyprus, Ireland and Romania, provide only for
complete deprivation of legal capacity as a consequence of the introduction
of a guardianship measure. In those countries no alternative exists.
47. In “General comment No. 1” on Article 12 of the UN Convention
relating to the recognition of legal personality on an equal basis,
the monitoring committee set down the principle that all guardianship
systems should be abolished.
Note That position is
fully in line with the current approach to disability based on human rights,
which implies a shift from a substitute decision-making paradigm
to one that is based on supported decision-making. The committee
points out in its General comment that legal capacity is an inherent
right of all persons, and says that it needs to be distinguished
from the capacity to exercise rights, for which support may be offered
when necessary, in accordance with Article 12 of the convention.
Consequently, in the committee’s view, the States Parties to the
UN Convention should, without delay, eliminate from their domestic
legal systems the existing substitute decision-making mechanisms.
48. This position is criticised by certain States which consider
that it fails to take account of the situation of persons who are
in a vegetative state or have very severe intellectual impairments
and who are unable to understand decisions and their implications.
For those States, the application of full guardianship should not be
excluded, as a last resort and subject to all the requisite safeguards.
NoteNote They consider that, in such cases, a
supported decision-making mechanism would be spurious, since it
would in practice be the supporting person who would take decisions
and not the person with a disability him or herself.
49. In order to understand the position of the monitoring committee
and of numerous organisations active in this field, it needs to
be pointed out that the consequences of deprivation of legal capacity
are particularly severe. In practice, when a person is subject to
full guardianship, he or she is deprived of the enjoyment and exercise
of a large number of civil rights, or even of all such rights. For
example, in a very large number of European countries, such a person
is no longer allowed to vote or to stand for election. In my country,
Spain, courts which impose the deprivation of legal capacity, even
if only partial, very often impose at the same time the deprivation
of the right to vote. As a result, around 80 000 people with disabilities
are not allowed to vote in Spain.
Note The Fundamental Rights Agency
noted in a recent study that only seven European Union member States
did not link the right to vote to legal capacity, and it called
on member States whose legislation deprives individuals of the right
to vote because of their disability to amend it.
Note Similarly, in
Recommendation CM/Rec(2011)14, the Committee of Ministers recommended
that Council of Europe member States ensure that their legislation
is devoid, at all levels, of provisions depriving persons with disabilities
of the right to vote or stand for election.
50. Finally, I should like to mention two supported decision-making
systems which have more particularly caught my attention:
a Support networks: one example which
is often mentioned is that of the Representation Agreement Act, adopted
in British Columbia, Canada, in 1996. This allows an adult to conclude
an agreement with a network of people who will thereby be allowed
to help him or her to take decisions and to be represented in the
event that he or she becomes incapable of taking decisions independently.
Note A representation agreement may also
be concluded by a person with a severe disability who is able to
communicate his or her wishes, or who demonstrates trust in the
persons designated to help him or her. That constitutes one of the
main innovations of this law, since the persons concerned no longer
have to establish their legal competence in accordance with the
usual criteria, for example by demonstrating their capacity to understand
the relevant information.
Note
b Persons of trust: in Sweden, the institution of “personal
ombudsman” (
personligt ombud)
was introduced throughout the country in 2000 for persons with psychiatric
disorders. Personal ombudsmen serve their clients and act in accordance
with the wishes of those clients, for example in dealings with social services,
but also help them to solve more personal issues such as family
disputes. Personal ombudsmen are available on a daily basis, visit
their clients and are not attached to any psychiatric or social
agency. Their independence from the authorities is a vital aspect
of the system and facilitates the establishment of a trusting relationship
with clients. In 2010, 325 personal ombudsmen were helping over
6 000 individuals in every part of Sweden.
Note A study by the World Health Organization
and the World Bank has assessed this innovative system and found
that the “initial costs can be high, as people assert their rights
and make full use of the services. But the costs fall as situations
are resolved and the need for support declines”.
Note
51. These two systems are in my view good practices. Undeniably,
the question of legal capacity is both complex and sensitive in
that it affects legal and cultural traditions which are deeply rooted
in member States. I nevertheless feel that it is necessary to start
to give thought to the models which exist in our respective countries
and to develop alternatives to substitute decision-making mechanisms,
drawing on innovative practices.
4 Silent victims:
violence against people with disabilities
52. People with disabilities are particularly vulnerable
to violence in their homes, at school or in specialised institutions.
This is a fact that is both known and often ignored. The European
Court of Human Rights ruled on the case, in Croatia, of a woman
and her adult son, who had physical and mental disabilities, who
for several years were subjected to physical and verbal harassment
by children attending the school which also housed the workshop
where the young man was employed. Despite their complaints, the
competent authorities, including the police, did nothing to put
a stop to the harassment. In a judgment handed down in 2012, the
Court held that there had been a violation of Article 3 of the European
Convention on Human Rights which prohibits inhuman and degrading
treatment.
Note
53. This is not an isolated case. It illustrates a failure to
act on the part of the authorities, who can sometimes trivialise
the situation. In a study on hate crimes, the Fundamental Rights
Agency pointed out that “the criminal justice systems in most European
Union member States fail to recognise crimes motivated by a person’s disability
as a fully-fledged bias motivation. Persons with disabilities are
therefore often unable to seek redress. The offenders may be tried
on the basis of, say, grievous bodily harm, leaving the bias that
motivated their attack unaddressed”.
Note As a
result, people with disabilities may be victims of violence because
of their disability, but failure to take account of this fact, both
in legislation and in the official statistics on crime, means that
people with disabilities are silent victims.
54. A good practice exists in the United Kingdom, where particular
attention has been paid to disability hate crime for several years
now. For instance, a provision whereby an offence motivated by hostility
towards an individual because of his or her disability constitutes
an aggravating circumstance was added to criminal law in 2005. However,
disability hate crimes are still not reported frequently enough,
taken seriously enough by the police or prosecuted often enough.
Note In October 2014, the
Crown Prosecution Service accordingly published an action plan designed
specifically to combat disability hate crime. This reflects the
authorities’ determination to combat such crime effectively, and
I urge all member States to adopt the same approach.
55. Although all people with disabilities could be the victims
of violence, I would now like to take a closer look at the problem
of violence against women and children with disabilities.
4.1 Violence against
women with disabilities
56. It is estimated that women with disabilities are
1.5 to 10 times more likely to be exposed to violence than women
without disabilities.
Note The extent of the problem is confirmed
by the many studies on violence against women with disabilities.
Note
57. This finding has recently been confirmed by the Fundamental
Rights Agency survey on violence against women in the 28 member
countries.
Note According
to this survey, more than one woman in two with a health problem,
a disability or with difficulties in their daily life is or has
been subjected to psychological violence by their partner or to
sexual harassment. A third are victims of physical violence. It
should also be noted that violence particularly affects young women
(18-29 years old).
58. It should, however, be pointed out that there are very few
precise statistics, per country, on violence against women with
disabilities. In Spain, the number of women with disabilities who
report aggressions does not appear in the statistics. In its Second
Action Plan for women with disabilities (2013-2016), the Spanish Committee
of Representatives of People with Disabilities (CERMI) noted that
“this clearly shows the extent to which women with disabilities
are invisible as they are not considered to be potential victims
of gender violence, nor perceived by people in general as women”.
Note
59. There are very few personal accounts by women with disabilities
of the violence to which they have been subjected and this only
confirms the impression that the subject is taboo:
“One time, he actually took the
battery out of this wheelchair I’m in now. He just unplugged it
so I couldn’t move and if it wasn’t for a mutual friend that came
to the house he wouldn’t have plugged it back in. And I don’t know
how long I’d have been staying there with a dead battery. There
was no one else that was supposed to be going round to the house…
He’d make me wait for help or he’d tut a lot or he’ll say ’Oh god
you have to do it again, Oh come on then, get it over and done with’.
And shove me about sometimes.”Note
“People pity him because he is taking care of you… People
are reluctant to criticise this saint or to think he could be doing
these terrible things. And possibly, as well… people don’t really
’see’ a disabled woman as a wife, partner, mother. So I think for
some people it’s hard to think, well, this might be a woman who’s
being sexually or physically abused by her partner, is experiencing
domestic violence, because disabled women don’t have sex, do they?”Note
60. Women with disabilities are subjected to the same types of
violence as other women. Furthermore, they suffer violence because
of their specific situation of vulnerability and dependence on their
care providers or the providers of other services. It is in fact
often the latter who are the perpetrators of such violence. Isolating
and infantilising women with disabilities makes them even more vulnerable
to various types of violence.
61. In addition to physical, psychological and sexual abuse, particular
types of violence such as neglect or refusal to provide health care,
ill-treatment and financial exploitation are very common. Women
with disabilities are particularly concerned by forced abortions
and sterilisations, whereas such acts are condemned by the Istanbul
Convention on Preventing and Combating Violence against Women and
Domestic Violence.
62. At the hearing on violence against women with disabilities
held by the Parliamentary Network Women Free from Violence on 24 June
2014, Ms Ana Peláez Narváez, member of the UN Committee on the Rights
of People with Disabilities, talked of the “invisible reality” of
violence against women with disabilities because such violence often
takes place in enclosed spaces where no one else can see what is
happening. She also drew attention to the particular vulnerability
of women with mental disabilities to abuse and violence and the
fact that it is impossible for them to report such violence when
they have no legal capacity.
63. Women with disabilities who are victims of abuse face particular
obstacles which discourage them from reporting the abuse and violence
perpetrated against them. These obstacles include the difficulty
in gaining access to information, the very small number of shelters
accessible to women with disabilities, the risk that they will no
longer receive personal assistance if they leave their home and
the fear of being placed in an institution or of losing custody
of their children.
64. At the hearing held by the Parliamentary Network Women Free
from Violence, Gill Hague, Emeritus Professor at Bristol University
(United Kingdom), called for a fundamental change in cultural attitudes
towards women with disabilities, both with regard to the way in
which they are perceived and the way in which they are treated.
Funding, monitoring and documenting violence against women with
disabilities should be part of national and local strategies to
combat violence against women. Professor Hague not only called on
the services responsible for helping the victims of domestic violence
to improve their assistance to women with disabilities but also
on the organisations representing people with disabilities to give
more attention to the issue of domestic violence.
65. Studies specifically concerning violence against women with
disabilities have been carried out, for example in Germany and in
the United Kingdom.
Note They are examples of good practices
because they help collect detailed information so that a more precise
picture can be gained of the extent of the problem at national level
and so that countries can identify the most appropriate steps to
take.
66. The Istanbul Convention does not contain any specific provisions
concerning women with disabilities. However, it protects these women
through the principle of non-discrimination enshrined in its Article 4, paragraph 3.
I trust that the convention’s monitoring body (GREVIO) will pay
close attention to the situation and the specific needs of women
with disabilities who are victims of violence. Given their unprecedented
role in monitoring a Council of Europe convention, national parliaments
and the Parliamentary Assembly should remain vigilant and ensure
that States Parties to the convention take appropriate measures.
4.2 Violence and the
stigmatisation of children and teenagers with disabilities
67. A July 2012 study conducted at the request of the
World Health Organization reveals that children with disabilities
are almost four times more likely to be faced with violence than
children without disabilities. It also appears from this study that
stigmatisation, discrimination and lack of information about disability,
as well as lack of social support for the carers of children with
disabilities, are the factors which expose them to a greater risk
of violence and rejection.
68. Some forms of violence are specific to children with disabilities.
These include, for instance, abuse defined as behaviour modification
(electroconvulsive treatment, drug therapy), the practice of forced sterilisation
of girls with intellectual or mental disabilities, abandonment and
“mercy killing”.
Note The latter may stem from the belief
that death is better than the (real or supposed) suffering related
to disability. It also reveals the lack of support for people with
disabilities and their families and the despair and isolation of
the parents of children with disabilities.
69. Violence against children with disabilities is a serious problem.
It is estimated that children with mental or intellectual disabilities
are 4.6 times more likely to be victims of sexual violence than
their non-disabled peers.
Note Particular attention must
be paid without delay to children with disabilities as a group at
serious risk of violence. All Council of Europe member States should
ratify the Council of Europe Convention on the Protection of Children
against Sexual Exploitation and Sexual Abuse, which provides that
a child’s disability is an aggravating circumstance when he or she
is the victim of abuse.
70. Placement in institutions is a major risk factor in terms
of physical and sexual violence affecting people with disabilities,
in particular children. The current trend towards promoting “deinstitutionalisation”
is fully in line with the UN Convention on the Rights of Persons
with Disabilities and the position of organisations representing
people with disabilities. At a hearing held by the Committee on
Equality and Non-Discrimination and the Council of Europe Committee
of Experts on the Rights of People with Disabilities (DECS-RPD)
on 2 October 2014, Professor Gerard Quinn of the University of Galway
(Ireland) condemned the fact that two million children with disabilities
lived in institutions worldwide and that they had “disappeared legally”,
in breach of their right to inclusion in society. The Commissioner
for Human Rights also condemned the toxic effects of institutions
on individuals and called on Council of Europe member States to
put an end to placement in institutions.
Note
71. The issue of life in institutions is vast and complex and
I do not intend to address it in detail in this report. However,
it needs to be looked at in depth in the member States so as to
move away from the culture of institutionalisation and develop alternatives
for people with disabilities which take account of their own choices. At
the hearing on 2 October 2014, a young man with disabilities underlined
that the choice of where to live should be left to the people with
disabilities themselves and that they may sometimes prefer to live
in institutions where the care and services they need are available
and where they feel less isolated. They must, however, have real
alternatives to enable them to choose, including, in particular,
the ability to access the care and services they need without living
in an institution.
72. In conclusion, I should also like to mention schools, where
violence against children with disabilities may also take place.
Numerous news items regularly draw our attention to this: for example,
the case of a teenager with disabilities whose classmate used to
burn him with cigarettes (Italy, March 2013) or that of a teenager
with a mild mental disability who was filmed while being ill-treated
and humiliated by other teenagers, who subsequently posted the video
on Facebook (France, February 2014). Cases of bullying are also
very common. In 2014, the Institute of Education in London noted
that primary school special needs pupils are twice as likely to
suffer from bullying as other children.
73. The individuals interviewed by the Fundamental Rights Agency
in the context of a project on the basic rights of people with mental
disabilities or mental health problems, included a 45-year-old Swedish
man who described his schooldays like this: “You were told all the
time that you were worthless, you’re bad, stupid and all that. So
I never had any friends at all.” This example shows how the stigmatisation
of children and teenagers leads to their isolation in flagrant contradiction
of the objective of full inclusion set out in all the international
and national instruments on disability.
74. When such things happen at school, the parents of children
with disabilities have doubts about the inclusion of their children
in ordinary schools and turn to specialised schools, which they
consider more capable of meeting their children’s needs and of protecting
them from violence. This is a normal response from parents who want
the best for their children. If the parents of children with disabilities
are to be encouraged to register their children in ordinary schools,
they must receive guarantees that their children will be protected
against violence at school. It is everyone’s responsibility to create
a peaceful environment at school that is appropriate to teaching
and to children’s development.
5 Conclusions
75. Protection of the rights of people with disabilities
reached a major turning point when the UN Convention on the Rights
of Persons with Disabilities came into force in 2008. This invaluable
treaty serves as a reference instrument for the work being done
in this field by both international organisations, such as the Council
of Europe and the European Union, and non-governmental organisations.
Implementing it nevertheless presents a challenge to all its States
Parties. For example, recognition of the legal capacity of people
with disabilities implies a review of the guardianship mechanisms
which exist in our member States. The current tendency is in fact
towards the development of supported decision-making mechanisms,
complementing, or even superseding, substitute decision-making mechanisms.
Some good practices exist in this field and deserve our attention.
76. Disability must be included in all the activities, initiatives
and policies (education, employment, transport, public procurement,
etc.) of all Council of Europe member States and the various international
organisations. This is essential if we are to move towards equal
rights and the full inclusion of people with disabilities. National parliaments
should make sure that austerity measures and budget cuts are designed
in such a way that equality policies for people with disabilities
are protected as far as possible. It is just as vital that policies
and measures in the field of disability are designed and developed
in consultation with organisations representing people with disabilities.
77. The Council of Europe’s Action Plan for 2006-2015 has contributed
to the development of national policies which take account of the
rights of people with disabilities, while also helping to make people
see disability as a human rights issue. The efforts need to be continued.
The Action Plan must be evaluated without delay and the Council
of Europe must define new activities in the field of disability.
The fundamental issues of legal capacity, deinstitutionalisation
of people with disabilities and violence against people with disabilities
must be addressed as priorities, including by the Parliamentary
Assembly.
78. There are more than 80 million people with disabilities in
Europe. We may all suffer from a disability at some point in our
lives. People with disabilities should no longer be invisible or
go unheard. Equality and inclusion for people with disabilities
are everyone’s business.
