CRPD Committee views on communications lodged under the Optional Protocol

SC v Brazil (no 10/2013)

On 2 October 2014, the Committee adopted its views in this case against Brazil conncerning a woman who had been demoted after taking more than three months of medical leave in accordance with her employer's policy, following a series of injuries which led to chronic illness and the permanent impairment of her knee. While the Committee found the complaint inadmissible for non-exhaustion of domestic remedies, it nevertheless explored whether the complaint fell within the scope of the Convention and concluded that the difference between illness and disability is a difference of degree and not a difference of kind, and that a health impairment which is initially conceived of as illness can develop into an impairment in the context of disability because of its duration or its chronic development. The Committee highlighted that a human rights based model of disability requires taking into account the diversity of persons with disabilities as well as the interaction between individuals with impairments and attitudinal and environmental barriers.

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Marie-Louise Jungelin v Sweden (no 5/2011)

On 2 October 2014, the Committee adopted its views in this case against Sweden concerning a woman with visual impairment who claimed she was subjected to discrimination on the basis of her disability in a recruitment procedure because the public agency employer failed to provide reasonable accommodation in the form of reasonable support and adaptation measures, to guarantee her right to employment on an equal basis with others, and further that insufficient consideration was given by the domestic labour court to alternatives which would allow her to carry out the tasks assigned to the post, in violation of Articles 5 and 27 of the Convention. Referring to the state's margin of appreciation, the Committee found that the domestic court had thoroughly and objectively assessed the alternatives and concluded that the author's rights had not been violated.

Five Committee members issued a joint dissenting opinion and one Committee member partially concurred with the joint dissenting opinion. The joint dissenting opinion asserted that the domestic court failed to consider sufficiently the alternatives to ensure her employment through the perspective of Article 5, i.e. the test of reasonableness and proportionality should ensure, inter alia, that the measures of accommodation were requested to promote the employment of a person with disabilities, and that the entity can reasonably be expected to implement accommodation measures.

The dissenting members raised the failure of the domestic court to consider the potential impact of the alternative measures on the future employment of other persons with visual impairments as an additional positive criterion, highlighting that even if reasonable accommodation is in principle an individual measure, the benefit for future employees must also be taken into account, in compliance with Articles 5, 9 and 27. Finally, they raised the failure to consider the profile of the public agency employer and the possibility of accessing subsidies and assistance benefits to implement measures to ensure the author's employment.

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X v Argentina (no 8/2012)

On 11 April 2014, the Committee adopted its views in this case against Argentina concerning a prisoner with disabilities who was receiving medical treatment on a daily basis as an outpatient. He complained of the conditions of detention, including lack of accessibility, and of the transfer between the prison and the hospital which he alleged put his life and health at risk. Based on his right to access adequate medical care and rehabilitation, he made repeated requests to be held in home arrest all of which were denied. The Committee rejected his claims on the merits under Articles 10, 25 and 26 of the Convention, finding it inconclusive that his life and health were put at risk by the transfer from prison to the hospital and that there was insufficient evidence to refute that his medical needs were being met. The Committee upheld the petitioner’s complaints with respect to the lack of accessibility within the prison and the lack of accommodations made to guarantee his mobility, finding violations of Articles 9(1), (2) and 14(2) of the Convention, as well as a violation of Article 17 for the precarious conditions of detention to which he was subjected on account of the lack of accessibility and failure to provide reasonable accommodation within the prison.

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Liliane Gröninger v Germany (no 2/2010)

On 4 April 2014, the CRPD Committee adopted its views in this case against Germany concerning the right to work of a young disabled man in which the Committee found that the State failed to promote the right to work by failing to facilitate inclusion into the labour market.

The German Social law provides for the granting of a subsidy for persons with disabilities to integrate in the labour force which is only applicable to persons with disabilities whose full working capacity may be restored within 36 months. The legal conditions for the granting of the integration subsidy is that an employer should make a binding employment offer to the individual and apply for the integration subsidy, after which the Employment Agency should evaluate the situation and take a decision on the duration and amount of the integration subsidy to be allocated (the subsidy would amount to a maximum of 70 % of the wages, for a maximum period of 60 months). The complaint alleged that the granting of the subsidy is discriminatory as it only applies to those whose full working capacity may be restored, and it does not create rights for disabled persons as the right to claim such a subsidy belongs exclusively to the employer. In this case, the young man had been registered with the Employment agency since 2002 yet it was alleged he had no access to general technical, continuous and vocational guidance and training programs, or to placement services and that where he had been able to access vocational training through private means, the Employment Agency refused to pay for his participation. Further, it was raised that the Employment Agency did not provide any support or assistance when looking for a job: where he had applied for positions and was interviewed, upon contacting the Employment Agency, potential employers turned down his application.

The Committee found that the existing model for the provision of integration subsidies did not effectively promote the employment of persons with disabilities; finding in particular that there are difficulties faced by potential employers when trying to access the integration subsidy that they are entitled to for the employment of a person with disabilities affect the effectiveness of the integration subsidies scheme and that the administrative complexities put applicants in disadvantageous position and may in turn result in indirect discrimination. The Committee therefore concluded that the integration subsidies scheme, as applied in this case, was not in accordance with the State party’s obligations under Article 27(1)(h), read together with Article 3(a), (b), (c) and (e), Article 4(1)(a) and Article 5(1) of the Convention.

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Zsolt Bujdosó and five others v Hungary (no 4/2011)

On 9 September 2013, the CRPD Committee adopted its views in this case which concerned six persons with intellectual disabilities whose names had been removed from the electoral register upon being placed under guardianship in accordance with the Constitution, and as a result had been denied the right to vote in parliamentary and municipal elections in 2010, in violation of Articles 29 and 12 of the Convention. While the State party claimed that this automatic denial of the right to vote of persons under guardianship had been remedied through the abandonment of the Constitutional provision and the passing of legislation which permitted courts to individually assess one’s capacity to vote during guardianship proceedings, the CRPD Committee recalled that Article 29 does not foresee any reasonable restriction, nor does it allow any exception for any group of persons with disabilities. Hence, an exclusion of the right to vote on the basis of a perceived, or actual psychosocial or intellectual disability, including a restriction pursuant to an individualised assessment, constitutes discrimination on the basis of disability. The CRPD Committee concluded that the State party failed to comply with its obligations under Article 29 of the Convention, read alone and in conjunction with Article 12 of the Convention.

This is the Committee’s first decision on a communication relating to Article 29. It reinforces the Committee’s Concluding Observations on the subject and emphasises that judicial capacity assessments on an individual's right to vote are discriminatory in nature and cannot be advanced as a justification to preserve the integrity of the State’s political system. It further clarifies that any reading of the European Court of Human Rights judgment Alajos Kiss v Hungary (Application no 38832/06, 20 May 2010) which suggests that one’s right to vote can be legitimately removed on the basis of an individualised judicial evaluation, is not in compliance with Articles 29 and 12 of the CRPD.

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Szilvia Nyusti & Péter Takács v Hungary (no 1/2010)

On 16 April 2013, the Committee on the Rights of Persons with Disabilities adopted its views in an individual communication lodged under the Optional Protocol to the CRPD against Hungary. The case was brought by two Hungarian nationals with visual impairments who had separately concluded contracts for private account services with OTP bank. Despite the obligation for them to pay the same level of fees as other OTP clients, they were denied access on an equal basis with others to the use of their banking services and transactions on account of OTP’s inaccessible ATMs which lacked Braille fonts, audible instructions and voice assistance. The CRPD Committee found a violation of Article 9(2)(b), that the State party failed to comply with its obligation to ensure accessible banking services for persons with visual impairments, including those provided by OTP and other private financial institutions. The Committee upheld the obligation incumbent on the State to ensure that private entities that offer facilities and services open or provided to the public take into account all aspects of accessibility for persons with disabilities, and this obligation must be maintained regardless of contractual relationships concluded between individuals and private entities.

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Kenneth McAlpine v UK (no 6/2011)

This case against the UK concerns a man with type 1 Diabetes who was made redundant from his employment. He claimed that his redundancy was based on the presumption that diabetes results in prolonged periods of time off due to illness, and that he had been the victim of disability based discrimination. He filed a complaint before the Employment Tribunal and proceedings were held during which the facts were refuted by his employer. His first complaint was dismissed along with subsequent appeals. The Committee found that his complaint was inadmissible ratione temporis: the facts occurred prior to the entry into force of the Optional Protocol in the UK.

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HM v Sweden (no 3/2011)

The Committee on the Rights of Persons with Disabilities has recently adopted its first views on an individual complaint lodged under the Optional Protocol to the CRPD.

The case against Sweden concerns a local municipality’s refusal to grant a building permit to a woman with a degenerative illness, who could not leave her home without great risk, for installation of a hydrotherapy pool on her property for the purposes of rehabilitation and maintaining her health. The Committee found that the State failed to provide reasonable accommodation and fulfil its obligations concerning non-discrimination, living independently and being included in the community, health and rehabilitation resulting in violations of Articles 5(1), 5(3), 19(b), 25 and 26, read alone and in conjunction with Articles 3 (b), (d) and (e), and 4(1) (d) of the Convention.

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