HUMAN RIGHTS AND DISABILITY

SPAIN REPORT 2009[1]

Drafted by the CERMI State Delegation for the UN Convention

www.cermi.es

www.convenciondiscapacidad.es

CONTENTS

I. Introduction

II. Analysis of the Convention by article

III. Conclusions

IV. Theme: “The right to an inclusive education in Spain” by María José Alonso Parreño

APPENDICES

·  CERMI’s proposal for a basic outline for the setting up of a new procedure for providing support for decision making in accordance with the International Convention on the Rights of Persons with Disabilities – Rough Draft for input.

·  Bases for a new inclusive education – CERMI document.

I. INTRODUCTION: CERMI, AN INDEPENDENT ORGANISATION TO MONITOR THE APPLICATION OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

In September 2009 the Government of Spain appointed CERMI as the independent monitoring body to promote, protect and oversee the application of the Convention, in compliance with article 33.2 of the International Treaty.

For the second consecutive year, and this year as an independent monitoring body, CERMI has drafted the Report on Human Rights and Disability, in order to analyse how the rights and principles included in the United Nations’ International Convention on Human Rights of Persons with Disabilities (hereinafter CRPD) are being applied and respected. Practices and attitudes which are in clear conflict with the Treaty are recorded and documented throughout this document with the intention of condemning these situations and calling the attention of the public authorities to take responsibility for respecting, protecting and promoting the rights of persons with disabilities.

One of the fundamental aims of CERMI, as the entity which represents organized disability in Spain, with more than 5,500 associations and bodies of persons with disabilities and their families, is to defend the rights of this social group, who in this country number over four million people and who, with their families, amount to around ten million citizens. In our attempt to achieve this aim, we have become aware of situations which constitute a violation of the rights of people with disabilities; rights which are firmly set in the Spanish Constitution (CE) and in the CRPD itself. In drafting this report we intend to expose these violations in order to learn how to eliminate them and restore the rights of a sector of the population who are experiencing citizenship deficit.

We have used different sources of information, principally: queries and complaints received by CERMI itself as an independent monitoring organisation, actions undertaken in the course of the entity’s usual work, our organisation’s various collaborators and news published in the press which has instigated research on the part of CERMI.

An analysis was made by article in order to systematise the information for the report cards which the United Nations requires of the States, which includes information in relation to:

-  Violations: as individual cases, not all those received but those which are the most striking or which serve as examples of violations or actions undertaken by CERMI.

-  Positive action: cases of especially significant good practice.

-  Court rulings by Spanish legal authorities: which interpret or apply the CRPD.

II. ANALYSIS OF THE CONVENTION BY ARTICLE

With regard to compliance with the principles and contents of the CRPD covered in articles 1 to 4.

The concept of disability in Spanish legislation. As already mentioned in the Report on Human Rights and Disability Spain 2008, hereinafter, Report 2008, the protection of persons with disabilities in our country only applies to individuals who have obtained an administrative certificate vouching for a degree of disability above 33 percent. This not only excludes certain people whose vulnerable situation is not protected by the applicable laws, levels of disability under 33 % or situations of disability caused by permanent impairments which have not been adequately assessed, it also restricts legitimate anti-discriminatory action to the existence of an administrative certificate. An example of people with disabilities who have no access to positive action, as they have failed to meet the minimum level of disability required for official administrative recognition, are people of limited intelligence, who are systematically excluded from the disability protection system yet require intensive support to guarantee their social inclusion. CERMI condemns this specific situation and has asked for legislative measures to legally bring people with limited intelligence onto an equal basis with people with disabilities.

With regard to the assessment criteria for disability situations in our country, we are currently starting a process of review of the instrument in order to adapt it to the social model and functioning established in the CRPD, in line in turn, with the World Health Organisation’s International Classification of the Functioning of Disability.

On the date of closing this report the Government expressed their intention to amend anti-discriminatory legislation[2] to extend protection against discrimination in accordance with the CRPD. CERMI considers this announcement a positive move, but demands that it be brought into effect as soon as possible, because in the meanwhile, there is conflict with the CRPD.

PROPOSALS FOR IMPROVEMENT
It is important to take into account the situation of those persons who, although they have a permanent impairment and obvious difficulty in accessing and exercising their rights (this is seen clearly with regard to the right to work, or to education, with the consequences that this entails), are excluded from social protection and access to social or financial facilities as they do not meet the requirements of the administrative concept which enables access to these measures. In this regard, CERMI has already proposed that these particularly vulnerable groups who find themselves neglected by the law (people with limited intelligence, as mentioned above) should receive administrative recognition, and that the situations of the greatest vulnerability need to be identified by the Spanish State in this regard and the necessary measures need to be adopted.

Reasonable accommodations. Reasonable accommodation as an exceptional measure for universal accessibility to the enjoyment of a right is an important tool at the disposal of persons requiring adaptations or individualised modifications in order to achieve equal opportunities. The concept of reasonable accommodation has a complex legal configuration as it includes indeterminate legal concepts ranging from the identification itself of what is understood as an “accommodation measure” to determining whether it is “reasonable”, for which the suitability or proportionality of the burden, amongst other things, needs to be assessed. In this regard, all the indications are that experience and analysis of specific situations should be used to shape the breadth and scope of the concept, which will offer greater legal security to those people wishing to make use of this measure.

PROPOSALS FOR IMPROVEMENTS
The use of this measure is not very extensive and frequent problems and conflict in its application are reported to us in the area of education and employment, for example. We consider that it is appropriate here to propose to the public authorities that, on the one hand, the regulatory framework should be reviewed and improved so that the application of “reasonable accommodation” is allowed providing it is appropriate, and on the other, that information campaigns should be undertaken on “reasonable accommodations” as a measure to prevent discrimination aimed at people with disabilities and society in general, in particular employers, public administration and education system professionals.

VIOLATION 2 (Rejection of Reasonable Accommodations)

The public administration refuses to adapt an examination for a person with a disability. In an examination for the Higher Corps of Civil Servants a person with a hearing disability asked for one of the tests to be adapted so that it could be sat in writing. The board refused this reasonable accommodation on two occasions as they considered it to be “modifying the examination”.

Subsequently, this person took the examination to the Corps of Property Registrars, and requested the oral examination to be adapted to a written format, and once again, the board refused, basing their response on the lack of legal regulation for this type of modification as reasonable accommodation (allowing extra time is allowed as reasonable accommodation). They considered that this would constitute a modification which is not included under the concept of reasonable accommodation.

The candidate made a complaint to the Specialized Permanent Office of the National Disability Council (hereinafter OPE), who decided that the written adaptation of the examination is necessary in the case of a foreign language test (English). However, they do not consider reasonable accommodation “substituting oral examinations for written in the specific subjects of the civil service entrance examination … in accordance with current legislation the principles of merit and ability should be met, and therefore a deaf person who is a graduate, should go through the selection process by undertaking an oral test like the other candidates, in order to comply with said principles, and as a result the candidate will be accredited as having the ability to hold a position in the Higher Corps of Public Administration”.

CERMI disagrees with the response from OPE: firstly, because they refuse to adapt the examination to a written format for part of the tests, this adaptation being reasonable accommodation requested and justified by the needs of the person and which would place the applicant on an equal basis to other candidates with no hearing disabilities, and secondly, because OPE’s response would generally impede a person with no speech from accessing Public Administration corps and this goes against the principles and precepts of the Convention itself.

Requiring persons with a hearing impairment to sit “an oral test like the other civil service entrance examination candidates” with no hearing impairment, and dispensing with the necessary adaptations clearly places them in a less favourable position and therefore constitutes discrimination against them.

Notwithstanding the accreditation of the merits and abilities to hold the position, and not considering the ability to speak an essential requirement to joining the Higher Corps of Public Administration, in the light of the Convention sign language or any other alternative or augmentative form of communication (Art 2) should be respected and recognised; in this regard, not only the adaptation of an oral examination to a written examination, but also sitting the selection test in sign language or sitting the examinations with the augmentative or alternative communication means or formats needed to place the person on an equal basis with others, could be considered reasonable accommodation.

CRPD RULING Art. 2 (4)

La Audiencia Nacional (National High Court) – a Spanish domestic court – applies the Convention and the concept of reasonable accommodation in a ruling on 2 November 2009. The Chamber for Administrative Litigation of the National High Court passed a ruling in favour of a university student with a disability who had requested an adjustment to the Ministry of Education’s grant award criteria. The Chamber Judge, D. José Luis Terrero Chacón, member of the Justice and Disability Forum, explains in an article written for CERMI, how the Convention was interpreted and applied in this case:

“The legal application of the Convention to our national law should be based on two constitutional assumptions:

The first, in relation to article 96 of the Constitution, with regard to the Convention, after its official publication in Spain it forms part of our internal legal order; and in accordance with article 1.5 of the Civil Code, the regulations contained in international treaties directly apply to Spain once they become part of the internal legal order through publication in full in the Official State Journal.

And the second, in relation to article 10.2 of the Constitution, according to which the rules in relation to fundamental rights and liberties recognised by the Constitution should be interpreted in accordance with the Universal Declaration on Human Rights and the international treaties and agreements on the same matters which have been ratified by Spain. Thus, the fundamental rights and liberties of persons with disabilities which are recognised under our Constitution should henceforth be interpreted in accordance with the principles and rights recognised in the Convention.

Based on the aforementioned premises, we should remember that the Convention defines discrimination on the grounds of disability in its second article, as any distinction, exclusion or restriction on the basis of disability which has the purpose or

effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including the denial of reasonable accommodation.

On the same precept the Convention 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”.

Therefore, on the basis of the aforementioned assumptions, we can contend that national courts should interpret internal rules bringing into effect the reasonable accommodations which are necessary or fair, in each case, in order to ensure the rights of persons with disabilities recognised under the Convention, filling the gaps in our legal order without it being essential, for the effective application of the Convention, for the legislator to specifically regulate the necessary accommodations in each area in order to avoid discrimination on the grounds of disability.

This is the criterion upheld by the Chamber for Administrative Litigation of the National High Court in their ruling of 2 November 2009, in which a person with a disability is exonerated from the academic requirements set in the internal rules for the awarding of grants.

In the aforementioned legal precedent, the appellant contested a resolution of the General Directorate of Territorial Co-operation and High Inspection of the Ministry of Education and Science, who denied him a grant to study Law because, in the previous academic year he had received an average mark and had passed a number of subjects at a lower grade than that required in the call for application as a condition for being awarded the grant.