Report to the Country Report Regarding the Compliance with the Convention on the Rights
1
Costa Rica:
Report to the "Country Report Regarding the Compliance with the Convention on the Rights of Persons with Disabilities"
EXECUTIVE SUMMARY
The Costa Rican state has achieved international prestige as a law abiding social state, where human rights are respected. This generally well-deserved prestige has declined in the last twenty years due to the country´s weakening of its social programs, which allowed social inclusion and effectively complying with human rights (particularly collective rights) of permanently excluded social and populations sectors.
It is within this background that the limited and incompletecompliance by the Costa Rican state is found, with respect to ensuring the rights of persons with disabilities (PWD). This country has approved laws and international treaties (like the CRPD), but its implementation has had a low impact, because public policies and programs are not designed with budget content. Consequently, those policies and programs are constantly postponed.
Though the National Rehabilitation and Special Education Council (in Spanish: CNREE), without any legal explicit support, declares itself "the institution in charge of disability matters in Costa Rica”, it has very little influence on the rest of Costa Rican institutions. This collegiate body is still weak so its incidence is not significant, neither for promoting inclusive and cross-cutting public policies benefitting PWD or for supervising compliance with existing norms.
Even though the Report of the Costa Rican State leaves a favorable impression regarding the compliance of the country with the CRPD, the substantial and real data, together with the everyday direct experience of PWD, uncover a very limited and superficial level of compliance. In fact, most of the public institutions have only triedto comply with the specific law (Law 7600), so theircompliance with this law is also very deficient.
This weak compliance with the CRPD is linked to the fact that Costa Rica has not appointed an specific public entity to strongly and clearly be in charge of implementing the treaty (Article 33, part 1, CRPD) and, to that end, elaborate an action plan regarding its effective implementation.
Now, though the Costa Rican state ratified the CRPD (with supra-legal status) on September 29 of 2008, two years after this international instrument entered into force, it did not have a real impact in improving the lives of PWD.It was not transcendental and, unfortunately, almost five years since, the situation has not changed to this date (September of 2013).
The examination of facts that we present in this Alternative Report,prepared by organizations from the civil society, is not exhaustive regarding the extended debt of the Costa Rican state in the field of the rights of PWD.
Because of space limitations and scarceresources available, the OPWD involved in this effort had to prioritize on some of the theme areas which greatly affect the conditions and the quality of life of PWD.
The areas covered in this report are:
(1) Awareness-raising in society (Article 8, CRPD).
(2) Physical accessibility, information, and communication (Article 9, CRPD).
(3) PWD without legal capacity (Article 12, Equal recognition before the law (Article 12, CRPD.
(4) Segregated and low-quality education; not inclusive education (Article 24, Education).
(5) A minimum percentage of PWD are employed (Article 27, Work and employment).
(6) PWD are the most excluded of the persons excluded(Article 28, Adequate standard of living and social protection).
(7) Implementation and monitoring (Article 33, National implementation and monitoring). There has not been an appointment of the public entity in charge of fostering the implementation of the treaty and the Ministry of Foreign Affairs designated an Interinstitutional Commission(of the President’s Office) to supervise the implementation of the CRPD, excluding the Office of the Costa Rican Ombudsman (Defensoría de los Habitantes), which would assure the desired independence.
General conclusion:What may be appreciated in this report, which was elaborated by a group of organizations of persons with disabilities of Costa Rica (OPWD), as the main conclusion, is that the CRPD has not been a relevant judicial instrument for the great majority of public entities of the country, its diffusion very limited and, consequently, its implementation by of public policies and actions remains a great debt on the part of the Costa Rican state with PWD.
I. INTRODUCTION
" Convention should have been a strong wind of change favoring the improvement of the lives of persons with disabilities of Costa Rica, yet until now it is only a weak breeze, almost imperceptible."
There is a big distance from talking to acting
Persons with disabilities in Costa Rica, whether they developed this condition at birth or if they acquired it at some stage of their lives, confront enormous difficulties or it is actually impossible for them to achieve social inclusion, with dignity and satisfaction, under equal conditions as other persons.
Once the deficiency, that converts them into persons with disabilities is acquired, because of the lack of adequate conditions offered by the Costa Rican state and its society, the great majority of these persons contemplate how their lives areshredded or annulled in all social spheres, including areas like education, production, and work.
First, it is necessary to indicate that, within the judicial framework of Costa Rica, there are many norms (national and international) approved to protect the human rights of diverse social and population sectors. Among these there are those that generally or specifically protect the rights of persons with disabilities.
The greatest problem found regarding the majority of these norms, including the CRPD, is that the Costa Rican state either does not comply with them, or does so in a very limited manner and with scarce social impact. The country´s institutional system remains locked in declarations and promises that do not translate into effective policies and programs. The country has not providedthe corresponding budget content for making real and concrete transformations. So, these norms become chimera, with null, limited, and diffuse compliance.
It is not casual that the influential Constitutional Court of Costa Rica has repeatedly indicated that, the country´s legislative body approves, without budget provisions for their effective implementation,legislationintended to benefit population social sectors. A proof of this situation is found in the 43 legislation projects regarding disability which have been presented and accepted for consideration by the legislative branch: none of them establish measures providing financial support for the actions to be undertaken or promoted.
This general situation is to be found within a weakening of the social programs experienced during the last government administrations, affecting directly the sector of persons with disabilities with an enormous and unattended social debt which has accumulated for decades. And, worse of all, there is no evidence of any political will or commitment to adequately pay for this social debt.
Good norms, scarce compliance
There are other norms pertaining the rights of persons with disabilities, for the purpose of this Alternative Report, two of them are emphasized: Law 7600 of Equal Opportunities for Persons with Disabilities and Law 8661 by which the Legislative Assembly of Costa Rica ratified the Convention on the Rights of Persons with Disabilities (CRPD).
-Law 7600:
The Law 7600 entered into force on May 29 of 1996 and its by-laws on April of 1998. Its level of compliance has been limited, irregular, and superficial in several aspects. Here is a concrete and significant example: The by-laws of Law 7600 orders that all public entities have to include,within their Annual Operation Programs, actions pertaining PWD and need to establish the corresponding budget to perform those actions. The majority of the Costa Rican public institutions do not comply with this regulation, and those few entities that plan specific actions pertaining PWD, later complain for not being able of performing those actions because of budget problems.
The Costa Rican National Rehabilitation and Special Education Council, defined as "the institution in charge of disability matters" in the country, performs a restricted supervision and has a limited impact regarding compliance with the norms recognizing and protecting the rights of PWD. It is pertinent to mention that this entity was created in 1973, pursuant Law 5347, that circumscribing its actions particularly to the areas of education and rehabilitation.
The Law 7600 mentions an entity in charge of disability matters in Costa Rica, without associating the CNREE with such condition. This is because the drafters of this law considered that said entity did not met the requirements for such a extensive roleand, therefore, a new institution had to be created with other characteristics. Nevertheless, before an initiative leading to the creation of that new entity was manifested, the CNREE filled a request of interpretation with the Costa Rican Attorney General´s office regarding the meaning of the expression "an entity in charge of disability matters" found in the Law 7600. The Costa Rican Attorney General´s office responded by saying that the function of an entity in charge of disability matters corresponded to the CNREE. The bad thing was that this resolution was nothing but a mere formality, because it was not translated into a political, administrative, and financial mandate, for strengthening the CNREE in order to comply such function of being "in change".
From the date of the corresponding resolution of the Attorney General´s office in 1997 to present time (2013), the CNREE has made some internal efforts to assume that responsibility, but it has not received the corresponding governmental support, not even from the Costa Rican state in general, to effectively fulfill such role. This somehow explains why the CNREE, as the "entity in charge of disability matters", has had such a limited impact at improving the living conditions and allowing the exercise of their rights on the part of persons with disabilities.
This way, though the CNREE has undertaken efforts to promote compliance with the Law 7600 (a national norm that is already 17 years old) and also it has worked on supervising the corresponding compliance by other institutions, its achievements in this area has been limited. This contrasts with the exaggeratedclaim that it is the "entity in charge of disability matters", included in the Official Report presented to the International Committee by the Costa Rican state.
Unfortunately, there is a lack of a sound research establishing the situations before and after the approval of Law 7600 for the population with disabilities in Costa Rica. Furthermore, there is a need for an statistical study providing reliable data establishing the real percentage of the population with disabilities and indicating what are the living conditions of these persons.
Another way of understanding this situation of failure to complywith the norms, which translates into the violation or lack of attention to the rights of persons with disabilities, is reflected in the cases presented before the Constitutional Court of Costa Ricawith demands because of the violations affecting this sector of the population. It is also opportune to mention here, the denunciations presented before the office of the Costa Rican Ombudsman, regarding lack of compliance with norms pertaining the rights of PWD[1].
The protection measures filled before the Costa Rican Constitutional Court, together with the complaints submitted to the Costa Rican Ombudsman office, reflect the severe problems and unattended needs of PWD, and also reflect the low level of incidence by the CNREE in achieving effective answers for them.
-Law 8661:
As it was indicated before, this law contains the CRPD. It should be pointed out that the CRPD is above the other Costa Rican laws, including –of course- the Law 7600. This assertion is funded on article 7 of Costa Rica´s Political Constitution which established that the international treaties ratified by the Costa Rican state are supra-legal. But something else may be added related with the judicial rank of the treaty, within the framework of norms in Costa Rica: The Costa Rican Constitutional Court, through its different votes, has awarded constitutional value to international human rights treaties, including the CRPD.
Not withstanding this reality, the CRPD has not been used as an important referenceby the majority of public institutions. The Law 7600 is relatively better known than the CRPD. Consequently, the compliance with this international treaty is still very scarce, compared with Law 7600.
Another limiting factor for complying with the Convention is the fact that the Costa Rican has not established what public entity is in charge of the application of the CRPDand for the coordinated and sustainable inter-institutional of this treaty. In other words, the Costa Rican state has not complied with the fundamental part 1 of the article 33 of the CRPD. At this point, it could be argued that the CNREE, as "the entity in charge of disability matters", should also assume the implementation of the CRPD, nevertheless, this is a fallacy. Costa Rica has not elaborated a Plan of Action for Implementing the CRPD.
The National Disability Policy (in Spanish: PONADIS/ 2011-2021), though a laudable effort, where in its promotion the CNREE considered the CRPD, still hasa reserved prognosis regarding its implementation. This reservation is due to the weak influence and incidence of the CNREE at the moment of implementing public policies regarding the rights of PWD.
As an important point of reference and evidence of the marked level of failure to comply, there is this National Disability Policy (2000-2010), for which the CREE undertook leadership in its design on the year 2000. After a costly process, this disability policy has not had a meaningful impact o result on the lives of the great majority of persons with disabilities in the country.
The real population of PWD: Statistical weaknesses
In Costa Rica there is no wide, rigorous, and reliable statistical investigation establishing what is the percentage of PWD existing in the country, under what conditions they live, and where do they live (How many of us are?, What is our real situation? and Where do we live?
If the Census results for 2000 and 2011 are compared, it is noted that the first census (year 2000) indicated a percentage of 5.35 and the other census (year 2011)indicated a percentage of 10.52[2] of persons with disabilities with respect to the general population. This means that the percentage of PWD practically doubles in 11 years. It is worth mentioning that the figure of the second census is closer to the results of the Household Survey of July 1998, Disability Module, where the established percentage of PWD was 9.4%.
Those inconsistencies reflect, on the one hand, the existence of incomplete information and, on the other, a level of bias not allowing the establishment of the real amount of PWD in the country nor permitting to achieve a reliable panorama of the conditions in which they live.
Therefore, until the desired sound studiesare not conducted, the bestreference available regarding the percentage of PWD is the World Report on Disability (World Health Organization/ World Bank, June of 2011), which indicates a percentage of 15%. This percentage figure indicates that the population of persons with disabilities in Costa Rica is estimated within a numerical rank of 600,000 to 700,000 persons.
In this sense, the Costa Rican state has an important debt regarding the adequate performance of the Article 31 of the CRPD: "Collecting data and statistics". As it is stated in this article: "State Parties undertake to collect appropriate information, including statistical and research data, to enable them to formulate and implement policies to give effect to the present Convention."
There is an urgent need to perform a statistical study as indicated in this article, which will serve as a solid foundation to formulate and implement public policies to comply with the CRPD.
Nevertheless, the possibility for the Costa Rican state of conducting a study of this nature is very obscure. This is because reliable information on disability is not a priority of the Costa Rican state, nor it is a priority of the National Institute of Statistics and Censuses (In Spanish: INEC). This becomes clear, as the official country report indicates, that such a study would be very hard to perform because it would be to costly.
Structure and methodology of the “Country Reports”
On the substantial part of the report, where the Costa Rican State must demonstrate its implementation of the CRPD (Second Part: Specific document), it does not meet the dispositions established by the International Committee, on several aspects:
-In the first place, it does not inform pursuant to the content on each of the articles: From 1 to 33, with the purpose of showing what it has performed (or what it plans to perform) with respect to what each norm establishes. What was done was to forcibly organize a presentation of the report following the six axis defined by the National Development Plan of 2011-2014 of the present administration (2010-2014 Presidential Term). This way, the Country Report is channeled and structurally biased to respond to the vision of a particular government administration, therefore departing from the perspective of a State Party, as it should have been performed.