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Common voice network Final Conference Policy paper




COMMON VOICE NETWORK PROJECT
POLICY PAPER

INTRODUCTION

The European Union has devoted itself to provide people with disabilities the possibility to practice their rights. The EU handles people with disabilities as citizens and active social and economical stakeholders, who contribute to building a sustainable Europe of solidarity and equal opportunities for all.

There is a wide-range agreement in the EU that it is necessary to deal with the questions in relation with disability. Human dignity, basic rights, protection against discrimination and social cohesion should be in focus.

A highlighted objective of the European Union is to provide support to everyone regarding basic rights, protection against discrimination and to achieve the equality opportunities. The aim of the EU action plan for the period 2004-2010 (approved in 2003) is to validate the aspects of persons with disabilities in the field of all related EU policies and to develop measures to enhance the integration of persons with disabilities into European societies. An important milestone of this effort is that a special directive regarding persons with disabilities should be created.

The European Union and its member states signed the UN Convention on the Rights of Persons with Disabilities in 2007 and at the same time they expressed their opinion again that disability is an important legal question as well that should be regulated by the appropriate legislation.

The Disability Action Plan 2003-2010 of the EU takes the questions related to disability in every EU policies into account.

The Member States and the Commission agreed at an informal ministerial meeting on disability issues in June 2007 to work, together with civil society, on a coherent and coordinated approach for the implementation of the UN Convention. They agreed that the EU Disability High Level Group should identify common challenges and solutions. The Common Voice Network’s research and proposals have been created in line with this initiative.

According to the document “Situation of disabled people in the European Union: the European Action Plan 2008-2009” more data on the situation of disabled people are still needed for better informed and targeted policy making.

The Common Voice Network project’s research wishes to contribute to achieving these aims as well.

The “Common Voice Network- International network of networks for enhancing the equal opportunities for persons with intellectual disabilities, multiple disabilities and autism on national and international level” project has been implemented in the rameworks of the Temporary Funding Programme for 1st October 2008 until 30th Sept 2009. The project has been carried out by the following international partnership (four EU-member countries and one candidate country):

  • Hand in hand Foundation- Hungary (managing partner)
  • Agency for Social Development Vision- Bulgaria
  • EVPIT- Estonia
  • Macedonian Scientific Society for Autism- Macedonia
  • DisabNet- Romania

We have carried out an international desktop research in the frameworks of the project, which was aiming at examining the anti-discrimination regulations and their implementation procedures based on the practical experiences of the NGO sector’s experts. The research is not to be considered representative, still it gives a picture about a field that has not been examined so far with this kind of tools. Its innovativeness is, that it puts the validation of the rights persons with intellectual disabilities, multiple disabilities and autism especially in focus. The research wasn’t aiming at comparing the texts of anti-discrimination regulations valid in each country in a detailed and taxative way but rather the practical implementation, and reflects the actual situation form the NGOs’ point of view. Such a research putting this target group in the focus has not yet been done in the Central- and Eastern European region, although it is highly reasonable, since our target group has the lowest ability of enforcing their interests and rights in comparison with other disability groups. Thus, the experiences of our research and proposals based on them can by all means be a starting point for decision-making and implementing bodies. In case besides the existence of the anti-discrimination regulations the serious barriers of law enforcement and special needs of people with intellectual disabilities, multiple disabilities and autism are not taken into account and the necessary tools are not available, then the bare existence of the regulations will never be suitable to reduce or eliminate the different forms of discrimination put into practice against this target group.

Based on the answers given for the questions of the research regarding the national-level disability and anti-discrimination legislation it can be generally stated that there is a great difference in the development and implementation of the different counties’ regulations. There are countries where the national legislation more or less complies with the EU-requirements, whereas in other countries great lacks are to be observed. There are some highlighted problems that exist in all the examined countries apart from their legislation and almost completely prevent the target group from law enforcement. Taken this into account our action plan primarily includes proposals based on the common problems, but deals with those more serious problems as well which occur only in some of the countries.

CONCLUSIONS

The most important conclusions of our anti-discrimination desktop research- based on the summarizing study of the desktop research:

  • The national level anti-discrimination legislation should be examined specifically focusing on the target group in the case of EU-member countries concerning whether they comply with the EU-directives or not.
  • The EU-member countries have to put more emphasis on ensuring that the EU-directives would appear in all fields of law and that they could be implemented when adapting the EU-level anti-discrimination legislation in their own national legislation.
  • In favour of enforcing the rights of the target group, the concept of disability should be standardized. There is no standardized definition for the group of persons with intellectual disabilities with regards to the implementation of the anti-discrimination legislation. It is still not clear in the national-level regulations who belongs to the group of persons with disabilities, and this way the adaptation and implementation of EU-level regulations is extremely difficult on the national level. There are differences not only on international level, but there are part-logical definitions as well (e.g. person under guardianship, persons with changed work abilities, persons with special educational needs etc.), which really makes the question of subject of the law difficult during the implementation of the laws.
  • Regarding the target group it is of crucial importance that the requirement of accessibility and reasonable accommodation would be adapted and implemented in the national legislation. Furthermore, it is also necessary to state and support with the appropriate system of sanctions that the violation of these requirements means discrimination.

 

PROPOSALS

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  • Measures to enhance the implementation of anti-discrimination legislation

The result of the research shows: there is a regulation in every country subject of the research that declares and defines the rights of persons with disabilities-except for Estonia.

It is of crucial importance, that even in case there is legislation regarding disability, the anti-discrimination and disability-related legislation would be harmonized with each other and that the validation of equal opportunities would be guaranteed by the appropriate legal procedures and sanctions and with the necessary institutionalized background of legal remedy.

  • Tools to support the enforcement of the rights of persons with intellectual disabilities

In most countries laws declare the rights of persons with disabilities. Practice shows that the more those kind of legal resources and social political documents (laws, orders regarding implementation, decrees that regulate the processes of the authorities, long-term strategies) dispose over the rights and equal opportunities of persons with disabilities, which especially refer to them and are obligatory and harmonized with each other, the more effective the enforcement of their rights is.

    • It is of central importance that the rights and the possibility of their enforcement would be known to all stakeholders in all countries. Since persons with disabilities belong to a group with limited possibilities to validate their own rights and interests, it is not enough just to declare their rights and ensure the system of their rights’ validation, some other supporting tools are also necessary (e.g ETR documents, supported decision making), and it is also very important that these tools would be accessible to them.
    • It is also crucial that the regulations of different sectorial areas would be in compliance with the general disability- and anti-discrimination legislation (e.g education, employment, social administration etc.)
    • Not only the drastic legal tools should be known to the stakeholders, but other softer procedures as well, that serve legal remedy (e.g mediation).
    • It is necessary to put those kind of watch-dog systems into operation that can monitor the most serious violation of rights, e.g legal advice systems that are specialized especially to the certain target group and can serve as a sort of research concerning how the regulations are implemented. Or in case there is no such kind of watch-dog system, it is necessary to examine the implementation of regulations focusing on the feedback of the stakeholders.
    • Enhancing the implementation of the EU Convention on the Rights of Persons with Disabilities

Only Romania and Hungary signed the UN Convention and its Optional Protocol as well, the other countries have only signed the Convention, and it is only Hungary that ratified the Convention and its Optional Protocol too. We are convinced that the EU Convention on the Rights of Persons with Disabilities is such a basic document, whose ratification is essential in order to protect and enforce the rights of persons with disabilities on national and international level.

There are many barriers of putting the Convention needed into practice even in those countries, where it has been ratified, because its disability categories are not necessarily identical with the disciplines used in national legislation. Furthermore, there are still many differences between the legislation concerning the equal opportunities of persons with disabilities in the countries having ratified the Convention, and the Convention itself. Thus, the Convention can only be a good reference point but often not more than that.

A possible direction of the national lobby work could be to achieve the approval of ratification of the UN Convention on the Rights of Persons with Disabilities and integrating it into the national legal system.

According to the document “Situation of disabled people in the European Union: the European Action Plan 2008-2009” it is an important objective that the European Union would ratify the UN Convention. According to this, the approval of the Convention on national level is not sufficient, its ratification is also necessary.

  • The implementation of anti-discrimination legislation in all sectorial areas

In case there is a special regulation in operation in the country declaring the rights of persons with disabilities, its disciplines are not validated in other legislative areas. The right of persons with disabilities should be enforced in the sectorial areas as well.

In connection with the target group it should be revealed in the sectorial areas (e.g. employment, health care, education, social services, etc.) to what extent the sectorial regulations and the practical implementation of the anti-discrimination regulations are harmonized with each other (e.g. concepts, differences with regards to the definition of a person with disability, disadvantageous differentiation, equal opportunities, etc.).

The obligation of complying with the requirement of equal treatment and the system of sanctions should be mentioned in all sectorial areas. The sector-oriented definitions are necessary, because different attitudes or actions might harm the equal opportunities of groups at risk of social exclusion.

  • Importance of national strategies and programmes

The most elaborated and specialized national disability programmes and strategies are in operation in Bulgaria, Macedonia and Hungary. The results of the research underline that the more specialized strategies and programmes the certain country and there are also orders concerning their implementation with specific deadlines, the more effective the enforcement and implementation of the rights are.

At the same time, the existence of national strategies and programmes is not completely enough, but there should also be orders that support the implementation of the programmes.

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  • The group of persons with intellectual disabilities with relation to the general disability concept

Our desktop research shows that in the Bulgarian, Estonian and Macedonian regulations the group of persons with disabilities is rather defined according to the medical approach, while in Hungary and Romania the social approach is more characteristic.

We think that it is of crusial importance- from a rights protection point of view-how the group of persons with intellectual disabilities is defined compared to other disability groups and who belongs to each “category”. Unclear definitions may cause serious uncertainty.

Three (Bulgaria, Macedonia and Romania) of the five examined countries doesn’t have specific regulations that use an actual and appropriate definition of the groups of persons with intellectual, multiple disabilities and autism.

  • Primarily we propose that the definition of disability used in the legislation regarding equal opportunities and other definitions used in legislation referring to sectorial areas should be harmonized with each other. It must not happen that in case of a person the regulations could not be applied because of conceptual uncertainty.
  • Secondly: in certain legal areas there should be no concept used that seriously violate human dignity, or out of date or stigmas (e.g. criminal law). We propose that the terminology used in national legislation would comply with the terminology used in EU-level and other approved international documents.
  • Also, the categories behind the different definitions should be clear and understandable to the target group, so that they would also be able to judge whether the certain anti-discrimination legislation refers to them or not.

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  • Disability as a protected attribution

The research shows that even the anti-discrimination law defines the different forms of discrimination and the “protected“ features of the target group very much in details, the anti-discrimination laws of the countries examined don’t give a precise and in-depth definition neither on the concept of disability as a protected attribution nor the exact subject of the law.

Although in the application of the law on equal treatment, it would be of crucial importance how the group of persons with disabilities is defined in it. We propose that a clear and precise definition should be given in the national anti-discrimination regulations concerning the group of persons with disabilities, since this can really enhance the implementation and validation of the rights of the target group.

  • Implementing the obligation of accessibility

There is no specific and explicit order in the law of equal treatment concerning the obligation of accessibility in none of the examined countries’ national regulations.

  • It should be clear in anti-discrimination regulations that omitting the fulfillment of the obligation of accessibility is a state of affairs carrying out direct discrimination
  • It is also very important to make clear, that accessibility doesn’t only mean physical accessibility, but all other disability-specific accessibility as well (e.g. info-communication accessibility). It is also very important that there would be deadlines set to the fulfillment of the obligation of accessibility and that sanctions or other tools to validate the obligation would also be available.
  • We propose that n case the adaptation of the UN- Directives in the national legislation isn’t carried out by deadline and appropriately, the EU Commission should put more emphasis on the implementation of the system of sanctions.
  • Implementing the concept of reasonable accommodation

The results of the research show that the obligation of reasonable accommodation isn’t mentioned in the national legislation, although this would be an important requirement with regards to the equal treatment of persons with disabilities. The member states should comply with the obligation of reasonable accommodation to the UE Employment Directive in the filed of employment and according to the UN-Convention in many other areas as well. It is possible that a person with disability would get into a disadvantageous situation compared to others due to his/her shortcomings in the certain setting (e.g. work place, school, hospital) or its communication environment, etc.

  • For this reason the barrier and the obligation to create an accessible environment should get an even broader definition in the legislation. The national legislation is obliged to create these wide-range definitions even by international and EU-level legal documents as well. The obligation indicated by these legal documents is the obligation of reasonable accommodation, according to which the obliged body should make every and any kind of modification, which ensures the possibility of the person with disability to create the legal relation with the obliged body in the certain legal situation. The obligated body is obliged to do this as long as it doesn’t mean causeless and undue burden to them.
  • The obligation of reasonable accommodation should be applied in the field of employment as indicated by the EU Employment Directive and also in many other fields as the UN Convention on Rights of the Persons with Disabilities suggests. Taken this into account the conceptual definition and the obligations with regards to it should appear in the national legislation (in EU-member countries and those countries that ratified the UN Convention on the Rights of Persons with Disabilities).

10. Reporting about anti-discrimination measures on national level

Only two of the five examined (Estonia and Hungary) countries replied that there is some kind of official data and regular reporting on the fulfillment of anti-discrimination requirements.

We propose that a report should be published every country on behalf of the bodies implementing the regulations regarding the practical experiences of validation of rights based on the equal opportunities and anti-discrimination laws.

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  • The necessity of special legal aid services

Two (Hungary and Macedonia) of five countries responded that there is any kind of legal aid service in operation in their country especially dealing with the target group of persons with intellectual disability, multiple disabilities and autism.

It is especially important, that a specialized legal aid service would be set up for the target group of persons with disabilities taken their limited capabilities to validate their own rights into account, because this target group mainly doesn’t know the activity of the institutions handling their problems and cases. It is really difficult to reveal the case of violation of rights without the system of supported decision making and complex support. It is only this way possible, that the characteristics of most typical cases could be identified and target group-specific proposals could be created regarding anti-discrimination and equal opportunities legislation.

  • Institutional background enhancing the implementation of anti-discrimination legislation

Two countries (Macedonia and Romania) replied that there is no such institutional system in operation in their country which is responsible for the implementation of the laws on equal treatment requirements.

It is generally true that the guarantee for the implementation of anti-discrimination regulations is the institutional background that ensures legal remedy. This is especially valid for the countries where the national legislation should be modified in line with the EU directives.
Only the anti-discrimination legislation that complies with the EU and other international legal documents, the institutional background enhancing their implementation and NGOs providing legal aid services can guarantee that the problems observed by the countries participating in the research would be solved on a long-term basis.

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  • Revision of the role of guardianship in anti-discrimination rights enforcement

According to the evaluation results, the system and structure of guardianship should be examined and revised in almost all countries.

  • It is of crucial importance that the system of guardianship would be in compliance with the expectations raised by the EU and other international documents. We would especially like to emphasize that in those cases where the guardian is the legal representative of the person with disability it is extremely important that in case of discrimination the guardian would represent the interests of the person on the highest possible level and would not hinder the validation of his/her rights. One of the negative experiences of our research is that the guardian very rarely acts in case there is discrimination against the person whose interest they should protect.
  • We can never be quite sure that anti-discrimination legislation is completely implemented with regards to the target group as long as the system of supported decision-making is not introduced properly in the national legal environment.
  • The evaluation results show that the system of supported decision-making is mostly not in practice at all in the countries being subject of the research. Although, since the UN Convention puts a great emphasis on supported decision-making, for those countries that have accepted the UN Convention, it is also a principle that they should follow. This is a possible direction of developing national regulations.

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