Welcome

A World Report on Disability published by the World Health Organization in 2011 indicates now that an estimated more than one billion people, or 15% of the world population, live with some form of disabilities around the world!

With the adoption of the UN International Convention on the Rights of Persons with Disabilities (CRPD Convention), persons with disabilities worldwide have an instrument that allows them to no longer just aspire to charity and condescendence, but to full inclusion in their respective societies.

The CRPD Convention and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006 and entered into force on 3 May 2008.

The CRPD Convention establishes monitoring mechanisms both at the international and national levels. At the international level the central monitoring mechanism is the UN Committee on the Rights of Persons with Disabilities (CRPD Committee). At the national level the CRPD Convention encourages States to establish a number of institutions in order to facilitate implementation and monitoring. A closer work with civil society organizations including national organizations of persons with disabilities is encouraged.

States parties are obliged under the terms of the CRPD Convention to respect, to protect and ensure the equal enjoyment of all human rights by persons with disabilities on equal footing with other citizens. However, ensuring the promotion, protection and implementation of the rights of persons with disabilities is not an easy task and will not be achieved without the contribution and collective efforts of civil society organizations both nationally and internationally based.

It is in this connection that DISABILITY COUNCIL INTERNATIONAL (DisabCouncil) is positioned as an innovative non-profit organization working to promote the full realization of the rights of persons with disabilities. Far too often disability is viewed as a health or charity issue. Disability Council International believes that persons with disabilities should be seen as an asset for the future of their countries rather than a burden to avoid. It is not so much a question of curing the impairments of persons with disabilities as it is a question of removing society made barriers (stereotypes, inaccessible environment, lack of reasonable accommodation) preventing the full and productive inclusion of persons with disabilities in absolutely all areas and forms of society life. It is a matter of putting ability and human dignity first.

In this regard, Disability Council International is an international NGO, universal in membership (it is open to persons with all forms of disabilities, but it appeals equally to persons without disabilities, who are invited to work, as active partners, for the promotion of the equal human rights of persons with disabilities). Disability Council International is also universal in its territorial ambit (its activities extend to all countries of the world).

Disability Council International is based in Geneva and works to encourage the universal ratification and implementation of the CRPD Convention through advocacy and capacity building programs of support to States and to the UN monitoring body (the CRPD Committee), the UN Offices and Agencies dealing with disability issues, civil society organizations, and national human rights institutions. It also develops projects directly benefiting concrete individual persons with disabilities and communities of those persons in all countries of the world.

Disability Council International also contributes to the implementation of the Convention by disseminating best practices in the realization of the human rights of persons with disabilities and fostering international cooperation in the exchange of technical innovations.

Dear Friend, if you share the desire of Disability Council International to make the world a better place for all to live in, without discrimination and inclusive of persons with disabilities, this is YOUR ORGANIZATION! Please join us as a member or otherwise become a sponsor for the cause of disability rights worldwide!

Let us make our SOCIETIES fully INCLUSIVE and ACCESSIBLE to Persons with Disabilities!

CRPD Jurisprudence

A. Case Ms H.M. vs. Sweden (April 2012)

The CRPD Committee reviews its first individual petition and finds Sweden in violation of its treaty obligations for denying reasonable accommodation to a person with disabilities (Case of Ms H.M. vs. Sweden, April 2012)

Case review

1. Case no. 3/2011 (H.M. vs. Sweden) (Views were adopted in April 2012 during the 7^th session of the Committee) is the first one ever decided by the CRPD on the basis of its competence under the Optional Protocol to the Convention on the Rights of Persons with Disabilities.

I. The facts of the case

2. The case reports to events that happened back in 2009/2010, more precisely between December 2009 and August 2010.During this period, Ms H.M., a Swedish national resident in the city of Örebro (Sweden) and a person suffering from multiple forms of disability, including the so-called Ehlers-Danlos Syndrome, tried unsuccessfully to secure permission from local municipal authorities for the building of an indoor hydrotherapy pool in her own plot of land, as recommended by her treating doctors. Orebro municipal authorities rejected her request for permission to build the indoor hydrotherapy pool, relying on local Swedish land use regulations that prohibited such buildings in that parcel of land. The petitioner went through the chain of administrative courts up to the Supreme Administrative Court of Sweden, which refused her appeal.

3. Having exhausted all possible local remedies, on 6 December 2010, Ms H.M. applied to the CRPD Committee seeking a redress of her situation under the CRPD Optional Protocol. In her claim to the Committee, H.M. essentially raised two issues: first that she considered that by failing to take account of her specific needs and her equal right to rehabilitation and improved health, Sweden has discriminated against her; and second, since without the hydrotherapy pool she would be left with the only option of joining an institution, her right to an independent life in the community would also be violated. The petitioner relied on a number of the substantive provisions of the Convention, in particular articles 5 (non- discrimination), 19 (life in the community), 25 (health) and 26 (rehabilitation).

II. The Committee’s position and reasoning

4. The Committee essentially agreed with the petitioner and found Sweden in violation of its obligations under the mentioned relevant articles (Sweden’s obligation to ensure the realization of the right of the petitioner not to be discriminated against, and her equal right to independent life in the community). The Committee recommended Sweden to consider authorizing the petitioner’s request for a building permit, and ensure that such violations are prevented in future including by ensuring that the interpretation of its legislation does not have the effect of nullifying the exercise of the rights of persons with disabilities on equal basis with others.

5. In coming to its conclusion, the Committee considered the following arguments:

1. There is discrimination contrary to relevant provisions of the Convention (arts 4, 5) when laws are applied in a neutral manner without taking into consideration the particular circumstances of the individuals to whom they are applied; accordingly the right not to be discriminated against is violated if a State, without objective and reasonable justification, treats equally, persons in different situations;
2. Making necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular situation is a requirement under the Conventional principle of reasonable accommodation, and denying such accommodation is considered a form of discrimination in the Convention (arts 2, 5). The Committee noted that the State never argued that providing the petitioner with such accommodation (departing from the official policy) would occasion a disproportionate or undue burden on the State;
3. The Convention (arts 25, 26) also requires States parties to undertake measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation to allow such persons to attain maximum independence and full inclusion in all aspects of life. The Committee also noted that the Convention requires such rehabilitation programs and services to be based on the multidisciplinary assessment of individual needs and strengths;
4. The Committee concluded that denying the building permission due to purported general public interests protected by the said law of Sweden, was a disproportionate and discriminatory measure adversely affecting the petitioner’s right to the healthcare and rehabilitation required for her specific health condition;
5. The Committee further concluded that by denying the building permission and leaving the petitioner with no other alternative but joining an institution, Sweden was also violating the petitioner’s right to life and inclusion in the community, which could only be supported with the indoor hydrotherapy pool. The Committee reminded that under the terms of the Convention (art 19), Sweden was obliged to provide persons with disabilities with a range of community-based supporting services and programs in order to prevent their isolation or segregation from the community.

6.The Committee requested Sweden to report back within 6 months on the measures undertaken to implement its Views and recommendations.

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B. Case Kenneth McAlpine vs. UK (September 2012)

The CRPD Committee was seized of its second individual petition and declined to review it for lack of jurisdiction ratione temporis(Case of Kenneth McAlpine vs. UK, September 2012)

Case review

1. Case no. 6/2011 (Kenneth McAlpine vs. UK) (Decision adopted in September 2012 during the 8^thsession of the Committee). This is the second case on which the Committee took a decision on the basis of its competence under the Optional Protocol to the Convention on the Rights of Persons with Disabilities.

I. The facts of the case

2. The case relates to events that happened back in 2005/2010, more precisely between December 2005 and February 2010.During this period, Kenneth McAlpine a British national and a person with diabetes mellitus (type 1 diabetes) was an employee of a private company. In December 2005 after a discussion with his supervisor related to his unavailability for a meeting at work, the supervisor was informed for the first time that the employee was a person with disabilities. The discussion resulted in a reasonable accommodation of Mr. McAlpine, who saw his duties at work reduced as he wished. In January 2006, a reorganization in the petitioner’s company resulted, this time against his specific will, in further, more substantive reduction of his duties. In February 2006 the petitioner was put on a confidential provisional list for redundancy. In May of the same year he was publicly informed of that decision, with the explanation that the reorganization made his specific duties no longer needed in the company. The petitioner then tried on his own to find an alternative occupation in the same company, but was unsuccessful, until the dismissal took effect in July 2006.

3. In August 2006, the petitioner lodged a complaint with the UK’s Employment Tribunal Service alleging discrimination. He claimed that he was dismissed because he had requested a reduction of his workload because of his disability. In support of his position he relied in particular on an exchange of messages available in the files of the Tribunal where his immediate supervisor had indeed proposed him for redundancy on account of his disability. However, the Tribunal noted that the exchange of messages happened after the petitioner had been included in the redundancy list by the direction of the company, of which the supervisor was allegedly unaware, and dismissed his complaint in August 2007.

4. In October of the same year the petitioner appealed the decision to the UK’s Employment Appeals Tribunal. In December 2007 the Appeals Tribunal dismissed the appeal alleging lack of “reasonable grounds” for a valid appeal.

5. The petitioner filed another application for leave to appeal these decisions to the highest Court of Session in the UK. In February 2010 the Court of Session (last available local remedy) also refused his application alleging the same lack of reasonable grounds for the appeal (matters of facts were within the purview of the lower Employment Tribunal, and the Court found “no errors of law” in the qualification of the facts by the lower courts).

6. In May 2011, having thus exhausted all the local remedies, the petitioner applied to the Committee. In his application, the petitioner raised issues of violation of his rights granted by the Convention, among others under the following articles: 4 (denial of reasonable accommodation), 5 (non-discrimination), and 27 (non-discrimination in employment).

7. The UK asked the Committee to declare the case inadmissible on the following ground, among others: lack of jurisdiction ratione temporis (alleging that the facts happened in 2006, whereas the State party ratified the Convention and the Protocol only in 2009).

II. The Committee’s position and reasoning

8. The Committee essentially agreed with the UK and found that it lacked jurisdiction ratione temporis to entertain the case on its merits.

9. In coming to its conclusion, the Committee considered the following arguments:

1. On the key matter of ‘date of the alleged violation’ by the UK (before or after its ratification of the Convention in 2009), the petitioner asked the Committee to consider this date as 2010, when the highest Court of Session’s decision was taken, but the Committee found that the 2010 highest Court of Session’s decision “by its very nature, did not in itself constitute an act that reiterated the content of the judgments of the lower courts in their rulings on the question of discrimination raised by the author, and that, consequently, the decision did not violate the author’s rights under the Convention.” (para. 6.5).
2. Therefore the Committee appears to have considered the UK’s Appeal Tribunal’s decision of December 2007 as the critical date of the alleged violation by an organ of the State, as it concluded in agreement with the UK that “the alleged violations took place before the entry into force for the State party of the Convention and Optional Protocol” in 2009 (para. 6.5).

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