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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS

BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

A PROJECT ON
‘RECOGNITION AND IMPLEMENTATION OF DISABILITY
RIGHTS BY EUROPEAN HUMAN RIGHTS COURTS’

ANALYTICAL STUDY IN LIGHT OF THE PROVISIONS OF INTERNATIONAL COVENANT ON


CIVIL AND POLITICAL RIGHTS AND THE CONVENTION ON THE RIGHTS OF PERSONS
WITH DISABILITIES

SUBMITTED BY: SHWETA PRASANNAKUMAR IYER

SCHOOL OF LAW, VELLORE INSTITUTE OF TECHNOLOGY

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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

I. TABLE OF CONTENTS

SR. NO. PARTICULARS PAGE

1. TABLE OF CONTENTS II

2. BIBLIOGRAPHY III

3. AN INTRODUCTION TO DISABILITY 1
RIGHTS UNDER INTERNATIONAL HUMAN
RIGHTS LAW
4. A DETAILED STUDY OF INTERNATIONAL 3
COVENANT ON CIVIL AND POLITICAL
RIGHTS AND CONVENTION ON THE
RIGHTS OF PERSONS WITH DISABILITIES
5. RECOGNITION AND IMPLEMENTATION OF 8
DISABILITY RIGHTS BY VARIOUS
EUROPEAN INTERNATIONAL HUMAN
RIGHTS COURTS
6. CONCLUSION 22

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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

II. BIBLIOGRAPHY
 General Assembly resolution 46/119 (1991)

 General Assembly resolution 48/96 (1993)

 General Assembly resolution 54/4 (1999)

 Despouy, Leandro. United Nations. Print. Human Rights And Disabled Persons,
Report By Special Rapporteur Of The Sub-Commission On Prevention Of
Discrimination Against Persons With Disabilities.

 Hermes, Gisela. "Krücken, Babies Und Barrieren. Zur Situation Behinderter


Eltern In Der Bundesrepublik". Kassel, bifos Volume E. (1998): n. pag. Print.

 Irene Daes,, Erica. United Nations publication, Sales No. E.85 XIV.9, 1986. Print.
Principles, Guidelines And Guarantees For The Protection Of Persons Detained
On Grounds Of Mental Ill-Health Or Suffering From Mental Disorder, Report Of
Special Rapporteur Of The Sub-Commission On Prevention Of Discrimination
And Protection Of Minorities.

 Kuhse, Helga, and Peter Singer. "Should The Baby Live? The Problem Of
Handicapped Infants". New York, Oxford University Press (1985): n. pag. Print.

 Quinn, Gerard et al. "Declaration On The Rights Of Disabled Persons: Human


Rights And Disabled Persons". The International Covenant on Civil and Political
Rights (1995)

 "General Recommendation No.18, 10th session (1991), Committee on the


Elimination of Discrimination against Women".United Nations. Web. 24 Mar.
2017.

 "UNHCHR Resources And Information.". Unhchr.ch. N.p., 2017. Web. 28 Mar.


2017.

 Wates, Michelle, and Rowen Jade. "Bigger Than The Sky: Disabled Women On
Parenting". London, The Women’s Press n. pag. Print.

 Burnip v Birmingham City Council & Anor [2012] EWCA CIV 629
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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

 Centre for legal resources on behalf of Valentin Câmpeanu v Romania:


Application no 47848/08

 Fag og arbejde (foa), acting on behalf of Karsten Kaltoft v Kommunernes


Landsforening (kl), acting on behalf of the Municipality of Billund

 Glor v Switzerland (App no13444/04) (30 april 2009)[1]

 Stuart Bracking and Others v Secretary of State for Work and Pensions [2013]
EWCA CIV. 1345 Case No: C1/2013/1283

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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

III. AN INTRODUCTION TO DISABILITY RIGHTS UNDER


INTERNATIONAL HUMAN RIGHTS LAW
“How a society treats its disabled is the true measure of a Civilization.”

Persons with disabilities are subjected to discrimination and obstacles that prevent them
from participating in the society on an equal platform. This unfortunate fact has often
been ignored and kept aloof from what is supposedly considered as matters of
international importance. Developing countries remains a home to a disproportionate
number of persons with disabilities living in extreme poverty. These marginalized
persons are denied their basic rights including freedom of movement, right to vote, to live
independently in the community that has an inherent right to privacy and to access
justice. Apart from this, they are excluded from the general school system, denied
employment, and right to participate in sport and cultural activities, to enjoy social
protection, to choose medical treatment and to enter freely into legal commitments such
as buying and sale of property.

The findings of the Office of the High Commissioner of Human Rights suggest that the
protection guaranteed in several human rights treaties, and grounded in the Universal
Declaration of Human Rights is equally applicable to all persons. However, Persons with
disabilities have been considered outside the ambit of the term person since they are often
side-lined and treated as if they were invisible and not entitled to enjoy the rights. As a
result of which persons with disability are unable to enjoy the rights guaranteed to them
under law, to the full extent. Research has indicated that the consequences of disablement
are particularly serious for women. Women with disabilities are discriminated against on
two grounds: gender and disability. 1 General Recommendation 18 by the Committee on
the Elimination of All Forms of Discrimination against Women specifically deals with
the issue of women with disabilities. 2 The optional protocol to the Convention on the

1
'Women With Disabilities Face Double Discrimination'
(ReliefWeb) <http://reliefweb.int/report/world/women-disabilities-face-double-discrimination> accessed 23
March 2017
2
"General Recommendation No.18, 10th session (1991), Committee on the Elimination of Discrimination
against Women".United Nations. Web. 24 Mar. 2017.
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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

Elimination of All Forms of Discrimination against Women3, which was adopted by the
General Assembly in 1999, may also provide an important venue to specifically address
the issues concerning women with disabilities. It is pertinent to note that in the recent past
a revolutionary change has occurred. Efforts have been taken globally to bridge the
protection gap and ensure that persons with disabilities enjoy the same standards of
equality, rights and dignity as everyone. These developments have moulded a paradigm
shift of disability issues away from areas of welfare and medicine and towards that of
human rights. This gradual movement has enabled to engineer the shift towards the
human rights perspective on disability. International instruments on Human Rights such
as the 1966 International Covenant on Civil and Political Rights, the 1948 Universal
Declaration of Human Rights and the 1966 International Covenant on Economic, Social
and Cultural Rights (ICESCR), have constituted the International Bill of Human Rights.
The United Nations General Assembly adopted the Convention in 1966 and the same
came into force in 1976 backed by ratification of sufficient number of States. The ICCPR
has two additional Protocols. The first Optional Protocol, allows for individual
complaints by citizens of States parties. The abolition of death penalty was dealt in the
Second Optional Protocol that was adopted by the United Nations General Assembly in
1989 and entered into force in 2000. The various civil and political rights contained in the
ICCPR can be divided into four clusters4 (a) Rights that refer to human existence, (b)
Liberty rights, (c) Associational rights and (d) Political rights.

However these rights did not exclusively cover people with disabilities. In order to fix
this loophole, the Convention on the Rights of Persons with Disabilities, was adopted in
2006 and entered into force in 2008. This Convention marked a transformation from
traditional charity-oriented, medical-based approaches to disability to one based on
human rights.

3
General Assembly resolution 54/4 (1999)
4
Quinn, Gerard et al. "Declaration On The Rights Of Disabled Persons: Human Rights And Disabled
Persons". The International Covenant on Civil and Political Rights (1995)

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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
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IV. A DETAILED STUDY OF INTERNATIONAL COVENANT


ON CIVIL AND POLITICAL RIGHTS AND CONVENTION
ON THE RIGHTS OF PERSONS WITH DISABILITIES

ICCPR deals with disabled persons through the non-discrimination clauses of the treaty
under the pretext of the term “other status” as evident in Articles 2 and 26. The United
Nations General Assembly has proceeded on the assumption that people with disabilities
are covered by the ICCPR in most declarations on disabled persons adopted in the last
twenty-five years.5 It is also reflected that during the said period, disability has emerged
as a civil and political rights issue rather than a medical problem to be resolved by a
policy of medical intervention and segregation involving special social services. This
historic concept or image of disability as a medical and social issue explains why
disability has generally not been perceived as a human rights issue in the same way as
gender or race.6

STUDY OF INTERNATIONAL COVENANT ON CIVIL AND POLITICAL


RIGHTS WITH REFERENCE TO DISABILITY RIGHTS

The various civil and political rights guaranteed under International Covenant on Civil
and Political Rights are frequently violated in the case of persons with disabilities as
evident from the reports produced by United Nations human rights bodies on disabled
persons.7 The following is a study of various disability rights as guaranteed, or as
envisaged to be protected, either explicitly or otherwise, under the ICCPR.

a)ICCPR rights - protecting human existence and the integrity of the person in the
context of disability

5
Quinn, Gerard et al. "Declaration On The Rights Of Disabled Persons: Human Rights And Disabled
Persons". The International Covenant on Civil and Political Rights (1995)
6
Ibid Page XII
7
Despouy, Leandro. United Nations. Print. Human Rights And Disabled Persons, Report By Special
Rapporteur Of The Sub-Commission On Prevention Of Discrimination Against Persons With Disabilities.

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Although Article 6 upholds right to life, the mortality rate of disabled children is often
high in developing countries due to lack of care and protection. Article 7 guarantees the
right to freedom from torture and other cruel, inhuman or degrading treatment and
punishment which includes prohibition of medical or scientific experimentation without
free consent. The targeted groups‟ right is violated since free and informed consent of the
disabled is only practiced in letter not in spirit. The “Principles for the protection of
persons with mental illness and the improvement of mental health care” adopted by the
United Nations General Assembly in 1991 8 give valuable guidance for the interpretation
of article 7 in the context of institutionalized disabled persons.

b)ICCPR liberty rights and disability: This right is upheld in Article 9.The “Principles
for the protection of persons with mental illness” monitors the legal capacity decisions
and standards of care and treatment. Article 10 stipulates that “all persons deprived of
their liberty shall be treated with humanity and with respect for the inherent dignity of the
human person.” Article 14 states that “all persons shall be equal before the courts and
tribunals.” Both article 14 and article 15 recognize important rights in the context of
criminal proceedings such as fair trail which must be guaranteed to disabled persons.
Article 16 also protects disabled person by stating “Everyone shall have the right to
recognition everywhere as a person before the law.” This is a key due process right in the
context of both civil and criminal commitment.9

Article 8 providing freedom from slavery and servitude is a right for disabled persons
both within and outside institutions. The United Nations Sub-Commission on the
Promotion and Protection of Human Rights10 has established a Working Group on
Contemporary Forms of Slavery that deals with human organ trafficking, the sale of

8
General Assembly resolution 46/119 (1991) read with Irene Daes,, Erica. United Nations publication,
Sales No. E.85 XIV.9, 1986. Print. Principles, Guidelines And Guarantees For The Protection Of Persons
Detained On Grounds Of Mental Ill-Health Or Suffering From Mental Disorder, Report Of Special
Rapporteur Of The Sub-Commission On Prevention Of Discrimination And Protection Of Minorities.
9
Kuhse, Helga, and Peter Singer. "Should The Baby Live? The Problem Of Handicapped Infants". New
York, Oxford University Press (1985)
10
A subsidiary body of the United Nations Commission on Human Rights.
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women and children and the international sex trade, 11 the victims being disabled people.
They can become victims even in “sheltered workshops”. Disability groups have claimed
that the working conditions in such facilities and the lack of legal protection for
employees amount to conditions of slavery. 12 The right to liberty of movement (article
12) includes the right to move around freely within a State and freedom to choose one‟s
residence. This compels the State to reconsider their public transportation and housing
policies which is an ICESCR issue that highlights the interdependence and indivisibility
of the two sets of rights, especially in the disability context.

c)ICCPR associational and other rights in the context of disability:. Freedom of


association (article 22) , family rights (article 23), the right to be protected as a child
(article24) and the right to privacy including respect for autonomy and human dignity
(article 17) fall within this cluster. The same applies to family rights (article 23) which
are violated if disabled persons are prevented from marrying for eugenic reasons.
Compulsory sterilization practices also violate article 23 rights. The Despouy report notes
that disabled persons are victims of such human rights violations in some countries. 13
Disabled parents (i.e. disabled mothers) often experience discrimination and feel that
States neglect them in their family programmes. 14 The United Nations Standard Rules on
the Equalization of Opportunities for Persons with Disabilities adopted by the General
Assembly in 199315, may be used as a source of interpretative guidance on article 23 in
the context of disability. Rule 9 describes disabled persons‟ requirements for equal rights
to sexual relationships, marriage and parenthood and Rule 18 deals with development of
disability policy.

11
Working Group on Contemporary Forms of Slavery <http://www.unhchr.ch/html/menu2/i2slavwg.htm.>
12
Susanne von Daniels, Theresia Degener et.al. (eds.) Krüppel-Tribunal: Menschenrechtsverletzungen im
Sozialstaat (Cologne, Pahl-Rugenstein, 1983).
13
Despouy, Leandro. United Nations. Print. Human Rights And Disabled Persons, Report By Special
Rapporteur Of The Sub-Commission On Prevention Of Discrimination Against Persons With Disabilities.
14
Michelle Wates and Rowen Jade (eds.) Bigger than the Sky: Disabled Women on Parenting (London,
The Women‟s Press, 1999); Gisela Hermes (ed. ) Krücken, Babies und Barrieren. Zur Situation behinderter
Eltern in der Bundesrepublik (Kassel, bifos e.V., 1998); Barbara Duncan, Rosangela Berman-Bieler (eds.)
International Leadership Forum for Women with Disabilities. Final Report (New York, Rehabilitation
International, 1997).
15
General Assembly resolution 48/96 (1993).

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d)ICCPR political rights in the context of disability: ICCPR enshrines the right to
freedom of thought (article 18) and freedom of opinion (article 19), the right of peaceful
assembly (article 21), the right to take part in the conduct of public affairs (article 25) and
equality rights (articles 2, 3 and 26). Freedom of thought and freedom of opinion (articles
18 and 19) are commonly reduced to freedom of religion in the context of disability.
Article 19 states that the right to freedom of expression includes “freedom to seek,
receive and impart information.” Article 25 connotes every citizen is entitled to “have
access, on general terms of equality, to public service in his country.” The right to
equality is one of the most important human rights for disabled persons enshrined in
Article 2, 3 and 26. The United Nations Decade of Disabled Persons (1983 – 1992)
identified discrimination as the reason for the exclusion of disabled people. Disability
discrimination is singled out as the most rampant and fundamental human rights violation
in the Despouy report.16

STUDY OF CONVENTION ON RIGHTS OF PERSONS WITH DISABILITIES


WITH REFERENCE TO DISABILITY RIGHTS

The Convention on the Rights of Persons with Disabilities and its Optional Protocol
(A/RES/61/106) was adopted on 13 December 2006 at the United Nations Headquarters
in New York. There were 82 signatories to the Convention, 44 signatories to the Optional
Protocol, and 1 ratification of the Convention. The Convention entered into force on 3
May 2008. The Convention symbolizes the changing approaches to persons with
disabilities. The Convention is a catalyst from viewing disabled “objects” of charity,
medical treatment and social protection towards seeing disabled as “subjects” with rights,
who are capable of claiming those rights and making decisions for their lives based on
their free and informed consent as well as being active members of society. Article 1
defines the purpose of the Convention: to promote, protect and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all persons with disabilities,
and to promote respect for their inherent dignity. Articles 4–32 define the rights of
16
Despouy, Leandro. United Nations. Print. Human Rights And Disabled Persons, Report By Special
Rapporteur Of The Sub-Commission On Prevention Of Discrimination Against Persons With Disabilities.

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persons with disabilities and the obligations of states parties towards them, reaffirming
International Covenant on Civil and Political Rights, International Covenant on
Economic, Social and Cultural Rights and the Convention Against Torture. The
Convention also highlights the rights to accessibility including the information
technology, the rights to live independently and be included in the community (Article
19), to personal mobility (article 20), habilitation and rehabilitation (Article 26), and to
participation in political and public life, and cultural life, recreation and sport (Articles 29
and 30).

In addition, parties to the Convention must raise awareness of the human rights of
persons with disabilities (Article 8), and ensure access to roads, buildings, and
information (Article 9). Reporting and monitoring of the convention by national human
rights institutions (Article 33) and Committee on the Rights of Persons with Disabilities
(Article 34) are dealt by Articles 33–3. In a nutshell, the guiding principles resonated in
the Articles of this Convention are:

1. Respect for inherent dignity, individual autonomy including the freedom to make
one's own choices, and independence of persons
2. Non-discrimination
3. Full and effective participation and inclusion in society
4. Respect for difference and acceptance of persons with disabilities as part of
human diversity and humanity
5. Equality of opportunity
6. Accessibility
7. Equality between men and women
8. Respect for the evolving capacities of children with disabilities and respect for the
right of children with disabilities to preserve their identities

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V. RECOGNITION AND IMPLEMENTATION OF DISABILITY


RIGHTS BY VARIOUS EUROPEAN INTERNATIONAL
HUMAN RIGHTS COURTS
A STUDY OF LANDMARK JUDGMENTS AND RESOLUTIONS WITH REFERENCE
TO INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND THE
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITES

It is a known fact that State parties tend not to recognize persons with disabilities as a
distinct group protected by the International Covenant on Civil and Political Rights and
by the Convention on the Rights of Persons with Disabilities. Most State party reports
refer to disabled persons only when other minority groups are mentioned. Paradoxically,
the recognition of disability rights by different state parties remains an underdeveloped
human rights arena for persons with disabilities. This is paradoxical because people with
disabilities are primarily fighting for the same freedom and liberty enjoyed by all and
nothing extra.

However, with the worldwide shift towards equal rights and participation, one can
foresee even greater use being made of the ICCPR and CRPD in the recent times. It
certainly has great potential as a means of stimulating the worldwide process of disability
law reform currently under way. Through this discussion, it is my agenda to undertake
detailed study of Judgments relating to cases of violation of human rights of persons with
disabilities in order to analyse the recognition and implementation of disability rights by
various International Courts and Tribunals.

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GLOR V SWITZERLAND
(APP. NO.13444/04) (30 APRIL 2009)[1]
Forum: European Court of Human Rights

Discrimination grounds: Disability

ABOUT THE CASE

Glor v. Switzerland 17, was the first time the European Court of Human Rights found
disability discrimination under Article 14 ECHR, and in doing so it relied upon the
CRPD. The United Nations Convention on the Rights of Persons with Disabilities
(CRPD) is often described as a „paradigm shift‟ in disability rights, and was introduced
because disabled people were „invisible‟ before existing international human rights laws;
for example, they do not feature in the usual lists of characteristics that are protected
against discrimination. Shockingly, Glor v Switzerland was the first time the European
Court of Human Rights found disability discrimination under Article 14 ECHR, and in
doing so it relied upon the CRPD.

FACTS OF THE CASE

The applicant, Swiss national Sven Glor, was deemed medically unfit to perform military
service due to his diabetes. His condition, according to the Swiss authorities, posed a
problem on account of the particular restrictions related to military service including
limited access to medical care and medication, the significant physical efforts required
and psychological pressure exerted. However, the authorities decided that Mr Glor‟s
diabetes was not severe enough to relieve him from paying a non-negligible military
service exemption tax on his annual earnings for several years to come.

17
GLOR V SWITZERLAND (APP NO13444/04) (30 APRIL 2009)[1]
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Mr Glor, however, actually wanted to carry out his military service, but was prohibited
from doing so. He was not permitted to carry out alternative civil service, this being
available only to conscientious objectors. Invoking Article 14 together with Article 8 of
the European Convention on Human Rights, Mr Glor argued that he had been subjected
to discrimination on the basis of his disability because he had been prohibited from
carrying out his military service, and was obliged to pay the exemption tax as his
disability was judged not to be severe enough for him to forgo the tax.

JUDGMENT OF THE CASE

In its judgment, while examining the arguments of the parties, the European Court of
Human Rights found that the Swiss authorities did not fairly weigh up the interests of
society and Mr Glor‟s human rights. In particular, the Court concluded that no objective
justification existed in a democratic society to distinguish between persons with
disabilities who are exempted from the tax and persons with disabilities who are obliged
to pay the tax. The Court held that the Swiss government had violated Mr Glor’s rights
under Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to
private and family life) of the European Convention on Human Rights by levying a tax
for exemption from military service to a person with disabilities who, because of his
disabilities, could not carry out compulsory military service. In its judgment, the Court
reiterated that Article 14 contains a non-exhaustive list of prohibited grounds, which
also encompasses discrimination based on disability. Referring to its previous
jurisprudence, the Court noted that an individual’s physical integrity relates to the
exercise of a person’s right to private and family life as set out in Article 8. In the
present case, a tax levied by the State which finds its origin in a person‟s inability to
serve in the army due to disability - a state of affairs which is beyond the applicant‟s
control - falls squarely within the reach of Article 8 of the European Convention even if
the consequences of the measures are primarily monetary.

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SIGNIFICANCE OF THE CASE

In the case of Glor v. Switzerland, the European Court of Human Rights, for the first time
(1) found a violation of the right to non-discrimination on the basis of the applicant‟s
disability, (2) referred to the United Nations Convention on the Rights of Persons with
Disabilities, and (3) used the human rights concept of “reasonable accommodation”. This
is the first ever ruling by the European Court of Human Rights in which the Court has
found a violation of Article 14 on the grounds of disability. Article 14 provides:

“Article 14. Prohibition of discrimination: The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on any ground such as
sex, race, colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.”

This judgment condemns the Swiss authorities for failing to provide reasonable
accommodation to Mr Glor in finding a solution which responds to his individual
circumstances. Echoing Article 2 of the UN Convention on the Rights of Persons with
Disabilities which defines reasonable accommodation as the “necessary and
appropriate modification and adjustments not imposing a disproportionate or undue
burden, where needed in a particular case, to ensure to persons with disabilities the
enjoyment or exercise on an equal basis with others of all human rights and
fundamental freedoms”, the Court calls for the implementation of reasonable
accommodation by, for example, filling posts in the armed forces which require less
physical effort by persons with disabilities. In highlighting the failure of the Swiss
authorities, the Court points to legislation in other countries which ensure the recruitment
of persons with disabilities to posts which are adapted to both the person‟s (dis)ability
and to the person‟s set of professional skills.

Further the Court makes explicit reference to the UN Convention on the Rights of
Persons with Disabilities as the basis for the existence of a European and universal
consensus on the need to protect persons with disabilities from discriminatory
treatment. It does so despite the fact that Switzerland has not yet signed the disability-
specific Convention, indicating that the Court values the Convention as the most up-to-
date expression of equality globally.
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CENTRE FOR LEGAL RESOURCES ON BEHALF OF VALENTIN CÂMPEANU V.


ROMANIA18
APPLICATION NO. 47848/08
Forum: European Court of Human Rights

Discrimination grounds: Mental Disability

ABOUT THE CASE

On 17th July, 2014, the European Court of Human Rights (ECHR) held the Romanian
government accountable for violating the human rights of Valentin Câmpeanu, a youth
with severe mental disabilities and HIV positive, who died in 2004. Abandoned at birth,
he lived in public institutions all his life. When he turned eighteen, he was shifted to a
social care home for adults, and afterwards, to a mental hospital. Here, left in isolation,
and in the cold, without necessary health care and treatment, and deprived also of food
and proper clothing, he died within seven days. In its decision on a complaint filed before
it, the European Court of Human Rights considers the rights to life and health of
individuals with mental disabilities, as well as their access to justice. The Court holds
Romania accountable for multiple violations of the European Convention of Human
Rights.

FACTS OF THE CASE

The Romanian NGO, Centre for Legal Resources (CLR) submitted a complaint on behalf
of Mr. Câmpeanu before the ECHR. On the issue of standing, the Court found that the
NGO would be permitted to represent Mr. Câmpeanu, even though the organisation was
neither victim of the alleged violations, or next-of-kin to the deceased, since otherwise
Romania would simply evade scrutiny. In particular, Mr. Câmpeanu had been placed in
medical institutions not equipped to provide adequate care for his health conditions, and
the authorities had neglected to ensure the implementation of his HIV treatment course
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CENTRE FOR LEGAL RESOURCES ON BEHALF OF VALENTIN CÂMPEANU V ROMANIA
APPLICATION NO 47848/08
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with antiretroviral medication. Moreover, the authorities, aware of the lack of resources
and appalling conditions at the psychiatric hospital where he had been placed, had
unreasonably put his life in danger.

JUDGMENT

The ECHR held that State had failed to meet Mr. Câmpeanu‟s most basic medical needs
resulting in his death. Thus the State had clearly breached his right to life under the
substantive requirements of Article 2 of the European Convention of Human Rights.
Also, Romania had violated the procedural requirements of Article 2 by failing to
conduct an effective investigation into the circumstances of his death. The Court also
found a breach of Article 13 as the State had failed to provide an appropriate
mechanism for redress to people with mental disabilities facing violations of their right
to life.

Concluding that the human rights violations in this case is reflective of a more systemic
problem, the Court recommended Romania to take the necessary general measures to
ensure that persons with mental disabilities in a comparable situation were provided
with independent representation enabling them to have complaints relating to their
health and treatment examined before court or other independent body.

SIGNIFICANCE OF THE CASE:

This case is a groundbreaking disability rights case concerning both access to justice
for individuals with disabilities and also, their ill-treatment in long-term stay
institutions. The decision shines a light on the plight of people with disabilities who
face institutional abuse and are particularly vulnerable since due to their disability they
are often unable to complain or seek judicial remedies to ameliorate their situation.

The decision will impact legal systems across Europe as the ECHR has held that NGOs
can represent people with disabilities who died due to violations of their rights, when
there was no one else to seek justice on their behalf. One interpretation is that the
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judgment more broadly refers to standing to act on behalf of people who died in
circumstances engaging Art 2 (right to life) of the European Convention of Human
Rights. (Interview over email with Constantin Cojocariu, international human rights
lawyer, and advisor to counsel in the Câmpeanu case, September 21, 2015) It has
been said that “the ECHR decision sets a precedent that will help tens of thousands of
people in similar situations to Valentin Câmpeanu across Europe.” Already the
Câmpeanu judgment has demonstrated its impact on ECHR jurisprudence: for example,
in Garcea v Romania (2015), the Court accepted that an NGO has standing to represent a
man who died in a regular prison, while the Câmpeanu holding that people with
disabilities should benefit from independent representation is used to good effect
in Ivanovic v Croatia (2014). In addition, a number of similar cases are pending before
the ECHR which could further clarify the notion of de facto representation first discussed
in Câmpeanu. (For example, Centre for Legal Resources on behalf of Miorița Malacu and
others against Romania, application lodged 2009, and Bulgaria Helsinki Committee
against Bulgaria, application lodged 2012.) (Interview over email with Constantin
Cojocariu, international human rights lawyer, and advisor to counsel in the Câmpeanu
case, September 21, 2015). Finally a number of international and national NGOs came
together to work on this case and to promote the rights of people with disabilities.

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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
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STUART BRACKING AND OTHERS V SECRETARY OF STATE FOR WORK AND


PENSIONS19
[2013] EWCA CIV 1345 CASE NO: C1/2013/1283
Forum: England and Wales Court of Appeal

Discrimination grounds: Disability

ABOUT THE CASE:

The Independent Living Fund (ILF) was set up to provide additional resources to enable
disabled people to live independently in the community in their own homes. Bracking
and others challenged the government‟s decision to close the ILF on the basis that they
had not properly considered the consequences of this decision for disabled people.

FACTS OF THE CASE

The claimants were disabled people and current users of the Independent Living Fund
(ILF), which provides funding to disabled people to supplement the community care
services available to them from local authorities. After public consultation, the closure of
the ILF in 2015 was confirmed by the Government. The claimants sought judicial review
of two decisions of the defendant Secretary of State: The first was the consultation
engaged in between July and October 2012 as to the impact of the proposed closure of the
ILF. They claimed that the consultation process was defective principally because
inadequate information had been given as to what was understood by devolution of the
fund to enable consultees to make an effective response and, in particular, provide
sufficient data to inform the Equality Duty.

The second was the decision made in December 2012 to close the fund: The Government
was said to have failed in reaching the decision to have due regard to its Equality
Duty.The High Court had:rejected the claimants‟ claims that the consultation process in

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STUART BRACKING AND OTHERS V SECRETARY OF STATE FOR WORK AND PENSIONS
[2013] EWCA CIV 1345 CASE NO: C1/2013/1283
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respect of the proposal to close the ILF was defective, and held that the decision to close
the ILF was not in breach of the Equality Duty. The Claimants appealed to the Court of
Appeal.

JUDGMENT

The Court of Appeal upheld this legal challenge against the Government’s decision to
close the Independent Living Fund. The Court of Appeal held that the government
had not adequately considered its positive obligations under Article 19 of the
Convention on the Rights of Persons with Disabilities – the right to independent living.
LJ McCombe said „there is simply not the evidence … to demonstrate to the court that a
focussed regard was had to the potentially very grave impact upon individuals in this
group of disabled persons, within the context of a consideration of the statutory
requirements for disabled people as a whole.‟

SIGNIFICANCE OF THE CASE

The Court of Appeal approved six principles:

•The equality duty is an integral and important part of the mechanisms for ensuring the
fulfillment of the aims of anti-discrimination legislation.

•The duty is upon the decision maker personally. What matters is what he or she took into
account and what he or she knew.

•A public body must assess the risk and extent of any adverse impact and the ways in
which such risk may be eliminated before the adoption of a proposed policy.

•A public body must have available enough evidence to demonstrate that it has
discharged the duty.

•Public bodies should place considerations of equality, where they arise, at the centre of
formulation of policy, side by side with all other pressing circumstances of whatever
magnitude.

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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

FAG OG ARBEJDE (FOA), ACTING ON BEHALF OF KARSTEN KALTOFT V


KOMMUNERNES LANDSFORENING (KL), ACTING ON BEHALF OF THE
MUNICIPALITY OF BILLUND20
Forum: European Court of Justice (Fourth Chamber)

Discrimination grounds: Obesity Disorder / Disability

ABOUT THE CASE

The European Court of Justice, for the first time held that obesity can be regarded as a
disability and dismissal from service on such grounds constitutes discrimination based
on disability. Mr Kaltoft was dismissed from service on the basis of obesity which
represented an act of discrimination. Mr Kaltoft, who had been working for the
Municipality of Billund for 15 years, was the only childminder to be dismissed on the
ground of an alleged decline in workload. Mr Kaltoft was unable to ascertain in specific
terms the reasons as to why he was the childminder who was chosen to be dismissed and
he alleges that his obesity had been a decisive factor in the decision-making process
leading to his dismissal. The applicant was given compensation for the discrimination
suffered on ground of this disability.

FACTS OF THE CASE

Mr. Karsten Kaltoft worked for 15 years for the Municipality of Billund (Denmark) as a
childminder. Throughout the duration of his contract, Mr Kaltoft was obese, as defined
by the World Health Organization. Mr Kaltoft was responsible for taking care of children
in his home. On 22 November 2010, the municipality terminated his employment
contract without giving reasons. Mr Kaltoft challenged the decision. In a meeting
between Mr Kaltoft and two municipality staff about his dismissal, Mr Kaltoft‟s obesity
was mentioned, although the context in which it was mentioned is a matter of
disagreement between the parties. A letter from the municipality dated 4 November

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FAG OG ARBEJDE (FOA), ACTING ON BEHALF OF KARSTEN KALTOFT V KOMMUNERNES
LANDSFORENING (KL), ACTING ON BEHALF OF THE MUNICIPALITY OF BILLUND
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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

confirming the decision to dismiss stated that the decision was taken “following a specific
assessment on the basis of a decline in the number of children, thus that of the workload,
having severe financial implications on the childminding service and on its organisation”.
However, the municipality did not indicate the reasons as to why it was Mr Kaltoft who
was chosen to be dismissed. Taking the view that the dismissal resulted from unlawful
discrimination on grounds of obesity, the Fag og Arbejde, a workers‟ union acting on
behalf of Mr Kaltoft, brought proceedings before a Danish court seeking a declaration of
that discrimination as well as compensation. The retten i Kolding, Denmark (District
Court of Kolding sought a preliminary ruling from the Court of Justice in order to assist it
in adjudicating the case. It asked the Court to specify whether EU law itself prohibits
discrimination on grounds of obesity and whether obesity can constitute a disability and
therefore fall within the scope of the EU Directive 2000/78/EC, which establishes a
general framework for combating discrimination in employment and occupation on
several grounds including disability.

JUDGMENT

The Court stated that the general principle of non-discrimination is a fundamental


right which forms an integral part of the general principles of EU law. This principle is
therefore binding on member states where a national situation falls within the scope of
EU law. In that regard, the Court noted that no provision of the Treaties or of secondary
EU legislation prohibits discrimination on grounds of obesity as such. In particular, the
Employment Equality Directive (Directive 2000/78/EC) does not cite obesity as a ground
for discrimination and the scope of that directive should not be extended by analogy
beyond the discrimination based on the grounds listed exhaustively. Moreover, the
Charter of Fundamental Rights of the European Union is likewise inapplicable in such a
situation. Thus, with regard to the first question, namely whether discrimination on
grounds of obesity is unlawful, the Court considered that in the area of employment and
occupation, EU law does not lay down a general principle of non-discrimination on
grounds of obesity as such. Consequently, there was no need to consider the second and
third questions. With respect to the fourth question, namely whether obesity can be

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BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

considered a disability, the Court recalled that the concept of “disability” within the
meaning of the directive must be understood as: [R]referring to a limitation which
results in particular from long-term physical, mental or psychological impairments
which in interaction with various barriers may hinder the full and effective
participation of the person concerned in professional life on an equal basis with other
workers. The Court emphasised that this concept must be understood as referring “not
only to the impossibility of exercising a professional activity, but also to a hindrance to
the exercise of such an activity”. The directive has the object of implementing equal
treatment and aims in particular to enable a person with a disability to have access to or
participate in employment. Further, the concept of “disability” within the meaning of
Directive 2000/78 does not depend on the extent to which the person may or may not
have contributed to the onset of his disability. The Court observed that the definition of
the concept of “disability” comes before the determination and assessment of the
appropriate accommodation measures that, pursuant to the directive, employers must
take in each particular case so as to enable a person with a disability to have access to,
participate in, or advance in employment (unless such measures result in a
disproportionate burden being imposed on the employer). Therefore, the mere fact that
such accommodation measures may not have been taken in respect of Mr Kaltoft does
not mean that he could not be considered a disabled person within the meaning of the
directive.

SIGNIFICANCE OF THE CASE

The Court held for the first time that if the obesity of the worker: entails a limitation
which results in particular from physical, mental or psychological impairments which
in interaction with various barriers may hinder the full and effective participation of
that person in professional life on an equal basis with other workers, and the limitation
is a long-term one, such obesity can fall within the concept of “disability”. This would
be the case, in particular, if the obesity of the worker hindered his or her effective
participation on account of reduced mobility or the onset of medical conditions
preventing that person from carrying out work or causing discomfort when exercising
professional activity. Through this case, the meaning and scope of disabilities was
broadened and obesity was also considered to be a disability.
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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

BURNIP V BIRMINGHAM CITY COUNCIL & ANOR21


[2012] EWCA CIV 629
Forum: European and Wales Court of Appeal

Discrimination grounds: Disability

ABOUT THE CASE:

In a unanimous ruling, the Court of Appeal held that the size criteria in the housing
benefit regulations discriminated against disabled people, because they do not allow for
an additional room to be paid for where a disabled person has a carer, or where two
children cannot share a room because of disability.

FACTS OF THE CASE

The decision concerned Ian Burnip and Lucy Trengove who needed 24-hour care, which
required carers to work in shifts and Richard Gorry who has two disabled daughters who
cannot share a room because of the nature of their disabilities. Since the case began, the
rules have been amended to cover the circumstances of Ian Burnip and Lucy Trengove,
but not to cover the situation of Richard Gorry. This ruling is therefore most important
where a room cannot be shared because of disability.

JUDGMENT

The claim succeeded. Discrimination under Article 14 can include failure to treat
differently persons whose situations are significantly different, without objective and
reasonable justification. This principle applied here. The failure to treat the disabled
housing benefit claimants differently was not justified, and in breach of Article 14. It was
not disputed that 'disability' fell within the concluding words of Article 14 "or other
status" (para 8 of judgment).

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BURNIP V BIRMINGHAM CITY COUNCIL & ANOR [2012] EWCA CIV 629
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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

It was also held that housing benefit fell within ambit of the U.N. Convention. It was not
disputed that housing benefit was within the scope of Article 14, because housing benefit
falls within the 'ambit' of Article 1 of the First Protocol of the Convention as a
"possession": The Court of Appeal accepted that there was prima facie discrimination
based on the principle in Thlimmenos v Greece, that Article 14 is also violated when
States without an objective and reasonable justification fail to treat differently persons
whose situations are significantly different. The Court of Appeal said at para 18:

The Court of Appeal also seems to have accepted the claimants' alternative submission
that there was indirect discrimination within D.H. v Czech Republic.

The Court of Appeal also said that if the correct legal analysis of Article 14 in the
circumstances of the case had been uncertain (which it was not), the court would have
resorted to the UN Convention on the Rights of Persons with Disabilities (CRPD). This
Convention would have resolved the uncertainty in favour of the claimants. "It seems to
me that [the CRPD] has the potential to illuminate our approach to both discrimination
and justification" (para 22).

SIGNIFICANCE OF THE CASE

This is one of the foremost cases whereby the Court held that even additional rights,
which are not normally given to ordinary people. like extra room for carers of disabled
persons in housing benefits schemes, can be given to disabled persons and violating
such rights constitute discrimination based on disability.

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ANALYTICAL STUDY OF RECOGNITION AND IMPLEMENTATION OF DISABILITY RIGHTS
BY VARIOUS EUROPEAN HUMAN RIGHTS COURTS AND TRIBUNALS

VI. CONCLUSION

Due to several consultations, interpretation and implementation of international norms


and standards relating to persons with disabilities, new networks and communities of
disability-sensitized policy makers, programme specialists, academics and advocates
have emerged. This emergence has led to universal execution and protection of rights that
will usher welfare of the society as a whole along with protection of disabled persons. In
order to ensure advancement of the society, the State should ensure that domestic laws
must incorporate the international norms and standards laid down for the disabled
persons. Specific legislation concerning the disabled persons must be promulgated in
order to address the issue. Focusing on the economic, social and cultural rights of the
disabled would lead to the emergence of disabled sensitized communities who will play a
significant role in the common goals State and will offer an insight to the State.

State parties tend not to recognize persons with disabilities as a distinct group protected
by the International Covenant on Civil and Political Rights and by the Convention on the
Rights of Persons with Disabilities. Most State party reports refer to disabled persons
only when other minority groups are mentioned.

Through this project, an analytical study of various Judgments, recognizing and


implementing disability rights by European Human Rights Courts, one can see even
greater use being made of the ICCPR and CRPD in the recent times. Such recognition
and implementation certainly has great potential as a means of stimulating the worldwide
process of disability law reform currently under way.

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