Disabilitybased discrimination: Council of Europe instruments

1
Disability-based discrimination Council of
Europe instruments

• Olivier De Schutter

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General Outline

• Statute of the Council of Europe (1949)
• I. European Convention on Human Rights (4
  November 1950) and Additional / Amending
  Protocols
• II. European Social Charter (18 October 1961),
  Revised ESC (3 May 1996)

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General Outline

• European Convention on Human Rights
• (Rome, 4 Nov. 1950)
• 46 States parties, incl. all EU Member States
•  special significance  in the general
  principles of EC Law applied by the ECJ as if
  binding on the EU, with the relevant case-law of
  the Eur. Ct. HR
• Article 6(2) EU Treaty   The Union shall
  respect fundamental rights, as guaranteed by the
  European Convention for the Protection of Human
  Rights and Fundamental Freedoms signed in Rome on
  4 November 1950 and as they result from the
  constitutional traditions common to the Member
  States, as general principles of Community law. 

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Status of the ECHR in the EU legal order

• Therefore
• Any act adopted by the EC/EU in violation of the
  ECHR may be annulled / found invalid
• 2. The Member States must comply with the ECHR
  in the implementation of EC/EU law and may only
  justify restrictions to freedoms under EC/EU
  where these restrictions are compatible with the
  ECHR

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General Outline

• European Convention on Human Rights
• The Scope of Application of Art. 14 ECHR
• 2. The Grounds of Prohibited Discrimination
• Forms of Prohibited Discrimination
• Burden of Proof
• Positive Action
• Relevance to protection from discrimination of
  persons with disabilities of Article 8 ECHR
  (right to respect for private life, including
  processing of personal data)

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European Convention on Human Rights

• Art. 14 ECHR 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.
• Not independent, but autonomous
• May only be invoked in combination with a
  substantive right or freedom ( in the ambit  of
  another right or freedom)
• There may be discrimination even in the
  absence of a violation of that substantive right
  or freedom where the State has chosen to
  implement certains rights or freedoms, the
  implementing measures may not violate the
  non-discrimination requirement

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Scope of Application of Art. 14 ECHR

• ECtHR, 23 July 1968, Belgian Linguistic Case
  no right to obtain from the public authorities
  the creation of a particular kind of educational
  establishment under Article 2 of Protocol No. 1
  (right to education), but   a State which had
  set up such an establishment could not, in laying
  down entrance requirements, take discriminatory
  measures within the meaning of Article 14 

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Scope of Application of Art. 14 ECHR

• However
• Certain factors mitigate the impact of the
  limited scope of application of Art. 14 ECHR
• prohibition of discrimination on grounds of a
  right or freedom of the ECHR having been
  exercised
• Article 14 ECHR may be combined with Art. 8
  (private and family life) or Art. 1 Protocol n1
  (property) with far-reaching consequences
• The prohibition of discrimination has been
  extended by Protocol n12 ECHR (2000)
• Discrimination may constitute degrading treatment
  under Art. 3 ECHR

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Art. 14 ECHR prohibits discrimination based on
the exercise of a right or freedom guaranteed
under ECHR

• Difference in treatment based on the exercise of
  a right or freedom guaranteed under the ECHR (eg
  marriage, lifestyle, religion, association)
• ECtHR, Thlimmenos v. Greece, 6 April 2000
  denial of access to the profession of chartered
  accountant because of a criminal conviction for
  having refused to wear a military uniform as a
  Jehovahs Witness
•  the applicant () is discriminated against in
  the exercise of his freedom of religion, as
  guaranteed by Article 9 of the Convention, in
  that he was treated like any other person
  convicted of a serious crime although his own
  conviction resulted from the very exercise of
  this freedom 

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Broad reading of Art. 8 ECHR

• Eg, Petrovic v. Austria, 27 March 1998
  parental leave allowance intended to promote
  family life and necessarily affects the way in
  which the latter is organised
•   it would be too restrictive to limit the
  notion ?of private life? to an inner circle in
  which the individual may live his own personal
  life as he chooses and to exclude therefrom
  entirely the outside world not encompassed within
  that circle. Respect for private life must also
  comprise to a certain degree the right to
  establish and develop relationships with other
  human beings  (Niemietz v. Germany, judgment of
  16 December 1992)

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Broad reading of Art. 8 ECHR the potential for
persons with disabilites

• Judge Molinari in Koua Poirrez v. France, 20
  September 2003 (allowance to adults with a
  disability denied to the applicant on the grounds
  of his nationality)  this case goes to the
  heart of Article 8 of the Convention. The Court
  must ensure that the dignity and the private and
  family life of all human beings are protected by
  the States signatory to the Convention. The
  Court has held that these States must in the
  first place respect the private and family life
  of anyone within their jurisdiction, but also
  remove the obstacles and restrictions which
  hinder the free development of the personality,
  and assume broader and broader positive
  obligations 

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The limits of Art. 8 ECHR as regards persons with
disabilites

• Principle the refusal of the States parties to
  adopt certain measures which have the potential
  of facilitating the social or professional
  integration of persons with disabilities, are not
  considered as falling under the ambit of Article
  8 ECHR in the absence of  direct and immediate
  link  to the private life of an individual
• Botta v. Italy (24 February 1998) right to gain
  access to the beach and the sea at a place
  distant from his normal place of residence during
  his holidays  concerns interpersonal relations
  of such broad and indeterminate scope that there
  can be no conceivable direct link between the
  measures the State was urged to take in order to
  make good the omissions of the private bathing
  establishments and the applicants private life 

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The limits of Art. 8 ECHR as regards persons with
disabilites

• Zehlanova and Zehnal v. the Czech Republic (14
  May 2002) public buildings or buildings
  providing services to the public (post office,
  local tribunal, police office, medical cabinets,
  swimming pool) inaccessible to persons with
  certain disabilities, due to deficient
  enforcement of the relevant regulations imposing
  the removal of architectural barriers to such
  buildings -  Considering the important number of
  buildings concerned, doubts remain as to their
  everyday use by the applicant and as to the
  existence of a direct and immediate link between
  the measures required from the State and the
  private life of the applicants  Art. 8 ECHR
  inapplicable

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The limits of Art. 8 ECHR as regards persons with
disabilites

• Nikky Sentges v. the Netherlands, 8 July 2003
  request for a robotic arm rejected by social
  insurance fund, confining the applicant to a
  situation of complete dependence on assistance
  from others -- Even assuming applicability of
  Art. 8 ECHR,  regard must be had to the fair
  balance that has to be struck between the
  competing interests of the individual and of the
  community as a whole and to the wide margin of
  appreciation enjoyed by States in this respect in
  determining the steps to be taken to ensure
  compliance with the Convention  (Art. 14 ECHR
  not invoked)

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The applicability of Art. 8 ECHR in situations of
widespread employment discrimination

• Impossibility to have access to employment
   within the ambit  of Article 8 ECHR?
• See Sidabras and Dziautas v. Lithuania judgment
  of 27 July 2004
•  a far-reaching ban on taking up
  private-sector employment does affect private
  life  
•   the ban has not affected the possibility
  for the applicants to pursue certain types of
  professional activities but it has affected the
  applicants ability to develop relationships with
  the outside world to a very significant degree,
  and has created serious difficulties for them as
  regards the possibility to earn their living,
  with obvious repercussions on their enjoyment of
  their private life 
• EurCtHR influenced by Article 1 2 of the
  European Social Charter ( with a view to
  ensuring the effective exercise of the right to
  work, the Parties undertake () to protect
  effectively the right of the worker to earn his
  living in an occupation freely entered upon 
  implies a right not to be discriminated in
  employment)

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Art. 14 ECHR in combination withArt. 1 Prot. N1
(right to property)

• Gaygusuz v. Austria, 16 Sept. 1996 (denial of
  emergency assistance after expiring of
  unemployment benefits, on the sole basis of the
  nationality of the worker)
• Extends to non-contributory benefits all
  pecuniary advantages which would have been
  provided but for the discriminatory condition
  (Koua Poirrez v. France, 30 Sept. 2003
  allowance for disabled adults denied on grounds
  of nationality)

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Beyond Art. 14 ECHR Protocol n12 to the ECHR (4
Nov. 2000 - in force since 1 April 2005)

• 1 The enjoyment of any right set forth by law
  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.
• 2 No one shall be discriminated against by any
  public authority on any ground such as those
  mentioned in paragraph 1.

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Beyond Art. 14 ECHR Protocol n12 to the ECHR (4
Nov. 2000 - in force since 1 April 2005)

• Extends prohibition of discrimination to, inter
  alia
• access to public places
• access to goods, provision of services
• access to nationality
• access to employment
• Does not directly impose obligations on private
  persons, however States parties may be imposed a
  positive obligation to adopt measures in order to
  prohibit discrimination by private parties, in
  situations where the failure to adopt such
  measures would be clearly unreasonable
•  a failure to provide protection form
  discrimination in ?relations between private
  persons? might be so clear-cut and grave that it
  might engage clearly the responsibility of the
  State and then Article 1 of the Protocol could
  come into play  (Explanatory Report, 26).

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Beyond Art. 14 ECHR Protocol n12 to the ECHR (4
Nov. 2000 - in force since 1 April 2005)

• Protocol n12, Article 1(1) prohibition
  concerns only the  enjoyment of any right set
  forth by law  -- may create problems of
  interpretation
• - e.g., of discriminatory refusal to rent
• - case where the legislator has not extended a
  right to a certain category

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Discrimination as a form of degrading treatment
prohibited under Art. 3 ECHR

• East Asian Africans v. the United Kingdom (rep.
  Eur. Comm. HR, 14 Dec. 1973) (confirmed Smith
  and Grady v. the United Kingdom, 27 September
  1999 Cyprus v. Turkey, 10 May 2001)
• even in the absence of an intention to
  humiliate or debase -- the impact on a person may
  suffice
• EurCtHR, Price v. the United Kingdom, 10 July
  2001 (applicant, who suffered from phocomelia due
  to thalidomide, committed to prison for contempt
  of court) to detain a severely disabled
  person in conditions where she is dangerously
  cold, risks developing sores because her bed is
  too hard or unreachable, and is unable to go to
  the toilet or keep clean without the greatest of
  difficulty, constitutes degrading treatment
  contrary to Article 3 of the Convention

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2. Grounds of Discriminationunder Art. 14 ECHR

• List of grounds not limitative, but exemplative
• Explanatory Report to Protocol n12 expressly
  including certain additional non-discrimination
  grounds (for example, physical or mental
  disability, sexual orientation or age) ?? might
  give rise to unwarranted a contrario
  interpretations as regards discrimination based
  on grounds not so included ( 20)

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2. Grounds of Discriminationunder Art. 14 ECHR

• Principle a difference of treatment is
  discriminatory within the meaning of Article 14
  if it has no objective and reasonable
  justification, that is if it does not pursue a
  legitimate aim or if there is not a reasonable
  relationship of proportionality between the means
  employed and the aim sought to be realised
• But test applied differently where  suspect
  grounds  are concerned sex, sexual
  orientation, nationality, birth out of wedlock,
  race and ethnic origin, religion (?), disability
  (?)

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Hierarchy of Grounds of Discrimination suspect
and less suspect grounds

• 1. The aim must be  legitimate  (inter alia,
  may not be based on irrational prejudice or
  hostility of the population)
• and moreover may have to correspond to  very
  weighty reasons  (differences based on suspect
  grounds only justifiable in exceptional
  circumstances)
• 2. There must be a relationship of
  proportionality between the differential
  treatment and the aim pursued
• and a requirement of  necessity  (measures
  based on suspect grounds must be strictly
  tailored)

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Hierarchy of Grounds of Discrimination suspect
and less suspect grounds

• Towards an absolute prohibition of certain
  differenciation criteria?
• ECHR, Timishev v Russia judgment of 13 December
  2005 (final on 13 March 2006), 158
• The Government did not offer any justification
  for the difference in treatment between persons
  of Chechen and non-Chechen ethnic origin in the
  enjoyment of their right to liberty of movement.
  In any event, the Court considers that no
  difference in treatment which is based
  exclusively or to a decisive extent on a persons
  ethnic origin is capable of being objectively
  justified in a contemporary democratic society
  built on the principles of pluralism and respect
  for different cultures.

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3. The Forms of Discrimination prohibited under
Article 14 ECHR / Protocol 12 ECHR

• 1. Direct discrimination differences in
  treatment which cannot be reasonably and
  objectively justified, i.e., which cannot be
  justified as pursuing legitimate objectives by
  measures necessary and proportionate
• 2. Indirect discrimination apparently neutral
  measures
• 2.1. Imposing a particular disadvantage
• 2.2. Failing to take account of real
  differences
• 2.3. Creating a disparate impact (statistically
  proven)
• which cannot be justified as a measure necessary
  for the achievement of a legitimate objective
• 3. Failure to provide effective accommodation

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Indirect discrimination by failure to take into
account relevant differences (2.2.)

• Thlimmenos v. Greece, 6 April 2000  The right
  not to be discriminated against in the enjoyment
  of the rights guaranteed under the Convention is
  also violated when States without an objective
  and reasonable justification fail to treat
  differently persons whose situations are
  significantly different () . The Court
  therefore has to address the question  whether
  the failure to treat the applicant differently
  from other persons convicted of a serious crime
  pursued a legitimate aim (). Excluding the
  applicant on the ground that he was an unfit
  person was not () justified. () the Court finds
  that there existed no objective and reasonable
  justification for not treating the applicant
  differently from other persons convicted of a
  serious crime. 

27
Indirect discrimination resulting from the
disparate impact of certain apparently neutral
measures (2.3.)

• Kjartan Ásmundsson v. Iceland, 12 October 2004
  violation of the right to property because of the
  disproportionate burden imposed on the applicant,
  the Court is  struck by the fact that the
  applicant belonged to a small group of 54
  disability pensioners () whose pensions, unlike
  those of any other group, were discontinued
  altogether on 1 July 1997 

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Indirect discrimination resulting from the
disparate impact of certain apparently neutral
measures (2.3.)

• May statistics presume discrimination?
• Hugh Jordan v. the United Kingdom, judgment of 4
  May 2001 over a period of 25 years (1969-1994),
  357 people killed in Northern Ireland by members
  of the security forces, the overwhelming majority
  of whom were young men from the Catholic or
  nationalist community - Where a general policy
  or measure has disproportionately prejudicial
  effects on a particular group, it is not excluded
  that this may be considered as discriminatory
  notwithstanding that it is not specifically aimed
  or directed at that group However, even though
  statistically it appears that the majority of
  people shot by the security forces were from the
  Catholic or nationalist community, the Court does
  not consider that statistics can in themselves
  disclose a practice which could be classified as
  discriminatory within the meaning of Article 14.

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Indirect discrimination resulting from the
disparate impact of certain apparently neutral
measures (2.3.)

• EurCt HR (2nd sect.), D.H. v Czech Republic
  judgment of 7 February 2006
• The Court observes that the rules governing
  childrens placement in special schools do not
  refer to the pupils ethnic origin, but pursue
  the legitimate aim of adapting the education
  system to the needs and aptitudes or disabilities
  of the children. Since these are not legal
  concepts, it is only right that experts in
  educational psychology should be responsible for
  identifying them. ( 49)
• the setting and planning of the curriculum
  falls in principle within the competence of the
  Contracting States. This mainly involves
  questions of expediency on which it is not for
  the Court to rule and whose solution may
  legitimately vary according to the country and
  the era ( 47)

30
Burden of proof governing discrimination cases

• Conditions for shifting the burden of proving a
  discriminatory intent
• Nachova and Others v. Bulgaria, Chamber judgment
  of 26 February 2004 (killing by State agents of
  two deserters of Roma origin not followed by
  effective investigations) it has become an
  established view in Europe that effective
  implementation of the prohibition of
  discrimination requires the use of specific
  measures that take into account the difficulties
  involved in proving discrimination () in cases
  where the authorities have not pursued lines of
  inquiry that were clearly warranted in their
  investigation into acts of violence by State
  agents and have disregarded evidence of possible
  discrimination, ?the European Court of Human
  Rights? may, when examining complaints under
  Article 14 of the Convention, draw negative
  inferences or shift the burden of proof to the
  respondent Government.

31
Burden of proof governing discrimination cases

• Therefore
• Positive obligation to investigate speedily and
  effectively deaths of suspect origin and alleged
  discriminations
• Where this positive obligation is not complied
  with the State may not benefit from its own
  wrong burden of proof shifted
• This second statement however was rejected by the
  Grand Chamber on 6 July 2005.

32
Burden of proof governing discrimination cases

• ECtHR (GC), Nachova and others v Bulgaria, 6 July
  2005
• The Grand Chamber cannot exclude the
  possibility that in certain cases of alleged
  discrimination it may require the respondent
  Government to disprove an arguable allegation of
  discrimination and if they fail to do so find
  a violation of Article 14 of the Convention on
  that basis. However, where it is alleged as
  here that a violent act was motivated by racial
  prejudice, such an approach would amount to
  requiring the respondent Government to prove the
  absence of a particular subjective attitude on
  the part of the person concerned. While in the
  legal systems of many countries proof of the
  discriminatory effect of a policy or decision
  will dispense with the need to prove intent in
  respect of alleged discrimination in employment
  or the provision of services, that approach is
  difficult to transpose to a case where it is
  alleged that an act of violence was racially
  motivated.

33
Burden of proof governing discrimination cases

• The Grand Chamber, departing from the Chamber's
  approach, does not consider that the alleged
  failure of the authorities to carry out an
  effective investigation into the alleged racist
  motive for the killing should shift the burden of
  proof to the respondent Government with regard to
  the alleged violation of Article 14 in
  conjunction with the substantive aspect of
  Article 2 of the Convention.
• However, violation of Article 14 ECHR on
  procedural grounds (no adequate investigation of
  potential racist motives)
• the authorities' duty to investigate the
  existence of a possible link between racist
  attitudes and an act of violence is an aspect of
  their procedural obligations arising under
  Article 2 of the Convention, but may also be seen
  as implicit in their responsibilities under
  Article 14 of the Convention taken in conjunction
  with Article 2 to secure the enjoyment of the
  right to life without discrimination. ()

34
Burden of proof governing discrimination cases

• any evidence of racist verbal abuse being
  uttered by law enforcement agents in connection
  with an operation involving the use of force
  against persons from an ethnic or other minority
  is highly relevant to the question whether or not
  unlawful, hatred-induced violence has taken
  place. Where such evidence comes to light in the
  investigation, it must be verified and if
  confirmed a thorough examination of all the
  facts should be undertaken in order to uncover
  any possible racist motives.

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5. Positive Action

• Preamble to Protocol No. 12 the principle of
  non-discrimination does not prevent States
  Parties from taking measures in order to promote
  full and effective equality, provided that there
  is an objective and reasonable justification for
  those measures
• Positive action implying differential treatment
  based on suspect ground allowable
• importance of the aim of combating
  discrimination
• reading of the ECHR in conformity with
  international law
• (Article 1(4) and Article 2(2) International
  Convention for the Elimination of All Forms of
  Racial Discrimination (1965), Article 4(1) of the
  International Convention for the Elimination of
  All Forms of Discrimination against Women (1979))

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6. Processing of personal data

• Article 8 ECHR guarantees the individual both
  against the unwanted substraction of confidential
  information, but also against the systematic
  processing of information relating the individual
  see Eur. Ct. HR, Rotaru v. Romania, judgment of
  4 May 2000, 43
• Convention for the Protection of Human Beings and
  Dignity of the Human Being with Regard to the
  Application of Biology and Medicine Convention
  on Human Rights and Biomedicine opened for
  signature in Oviedo on 4 April 1997 (ETS n 164)
• Convention for the Protection of Individuals with
  regard to Automatic Processing of Personal Data
  of 28 January 1981 (ETS n108)
• Directive 95/46/EC of the European Parliament and
  of the Council of 24 October 1995 on the
  protection of individuals with regard to the
  processing of personal data and on the free
  movement of such data

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6. Processing of personal data

• Occupational health and safety requirements
  creating an obstacle to the recruitment, or the
  retainment, of workers with a certain disability
  putting either themselves or the co-workers or
  the general public at risk under certain
  conditions of employment. See
• Article 7(2) of the Framework Directive With
  regard to disabled persons, the principle of
  equal treatment shall be without prejudice to the
  right of Member States to maintain or adopt
  provisions on the protection of health and safety
  at work or to measures aimed at creating or
  maintaining provisions or facilities for
  safeguarding or promoting their integration into
  the working environment.
• Article 2(5) of the Framework Directive
  authorizes the Member States to adopt measures
  which, in a democratic society, are necessary
  for public security, for the maintenance of
  public order and the prevention of criminal
  offences, for the protection of health and for
  the protection of the rights and freedoms of
  others.

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6. Processing of personal data

• Regulation of pre-employment medical inquiries
  should comply with requirements of the right to
  privacy in order to ensure that health and safety
  regulations do not result in indirect
  discrimination against persons with disabilities
  
• medical information to be sought only to the
  extent required for the task to be performed
• occupational doctor should only provide the
  employer with an evaluation of the aptitude to
  perform the job, not with a medical diagnosis
• candidate should be considered as fit if any
  disability can be met with an effective
  accommodation at reasonable cost

39
II. European Social Charter

• Instruments
• European Social Charter, 18 Oct. 1961
• Additional Protocol, 5 May 1988
• Revised European Social Charter, 3 May 1996
  includes 19 original provisions (1961), 4
  provisions of Add. Prot. (1988), and 8
  supplementary rights
• Supervision
• by the European Committee of Social Rights (1999)
  
• Biennal reports on accepted paragraphs (and
  regularly on not accepted provisions)
• Add. Prot. Providing for a System of Collective
  Complaints (9 Nov. 1995, in force 1 July 1998)

40
II. European Social Charter

• ESC has not been recognized similar status in EU
  law as the ECHR, however
• EU Member States remain bound by their
  obligations under the ESC even when they
  implement EU Law
• ESC source of interpretation of the EU Charter
  of Fundamental Rights and potentially for the
  development of general principles of Union law by
  the European Court of Justice

41
1. European Social Charter 1961

• No explicit prohibition of discrimination,
  however
• Preamble  the enjoyment of social rights
  should be secured without discrimination on
  grounds of race, colour, sex, religion, political
  opinion, national extraction or social origin .
• Article 1(2) of the European Social Charter
  undertaking to protect effectively the right of
  the worker to earn his living in an occupation
  freely entered upon (also in Rev ESC) requires
  States to legally prohibit any discrimination,
  direct or indirect, in employment. Stronger
  protection may be provided in respect of certain
  grounds, such as gender or membership of a race
  or ethnic group. The discriminatory acts and
  provisions prohibited by this provision are all
  those which may occur in connection with
  recruitment and employment conditions in general
  (mainly remuneration, training, promotion,
  transfer, dismissal and other detrimental
  action).

42
1. European Social Charter 1961

• Requires
• Legal framework prohibiting discrimination in
  employment must protect from discrimination
  either on all grounds or, at least, on the
  grounds of political opinion, religion, race,
  language, sex, age and health. Thus
• Removal of any legal obstacles to the access to
  employment of workers protected
• Effective remedies (incl. shifting the burden of
  proof)
• Protection from retaliatory measures against
  complainants
• Deterrent sanctions and proportionate
  compensation of victims
• Measures which  promote the full effectiveness
  of the efforts to combat discrimination according
  to Article 1 2 of the Revised Charter 
  collective action (unions and other groups),
  equality body
• 3. Effective equality in practice requires
  active labour policy seeking to promote the
  integration of minorities (education, training,
  )

43
2. Revised European Social Charter 1996

• Article E (in part V, horizontal provisions)
• The enjoyment of the rights set forth in this
  Charter shall be secured without discrimination
  on any ground such as race, colour, sex,
  language, religion, political or other opinion,
  national extraction or social origin, health,
  association with a national minority, birth or
  other status.

44
2. Revised European Social Charter 1996

• Article 15 The right of persons with
  disabilities to independence, social integration
  and participation in the life of the community
• With a view to ensuring to persons with
  disabilities, irrespective of age and the nature
  and origin of their disabilities, the effective
  exercise of the right to independence, social
  integration and participation in the life of the
  community, the Parties undertake, in particular
• 1. to take the necessary measures to provide
  persons with disabilities with guidance,
  education and vocational training in the
  framework of general schemes wherever possible
  or, where this is not possible, through
  specialised bodies, public or private

45
2. Revised European Social Charter 1996

• 2. to promote their access to employment through
  all measures tending to encourage employers to
  hire and keep in employment persons with
  disabilities in the ordinary working environment
  and to adjust the working conditions to the needs
  of the disabled or, where this is not possible by
  reason of the disability, by arranging for or
  creating sheltered employment according to the
  level of disability. In certain cases, such
  measures may require recourse to specialised
  placement and support services
• 3. to promote their full social integration and
  participation in the life of the community in
  particular through measures, including technical
  aids, aiming to overcome barriers to
  communication and mobility and enabling access to
  transport, housing, cultural activities and
  leisure.

46
2. Revised European Social Charter 1996

• Evolution of Art. 15 ESC from the 1961 Charter
  to the Rev. Charter 1996
• from a rehabilitation-based approach to a
  rights-based approach advances the change in
  disability policy that has occurred over the last
  decade away from welfare and segregation and
  towards inclusion and choice

47
2. Revised European Social Charter 1996

• In so far as Article 15 par. 1 of the Revised
  Charter explicitly mentions education, () the
  existence of non-discrimination legislation is
  necessary as an important tool for the
  advancement of the inclusion of children with
  disabilities into general or mainstream
  educational schemes Such legislation should, as
  a minimum, require a compelling justification for
  special or segregated educational systems and
  confer an effective remedy on those who are found
  to have been unlawfully excluded or segregated or
  otherwise denied an effective right to education.

48
2. Revised European Social Charter 1996

• Art. 15 par. 3 Rev ESC requires
• adoption of antidiscrimination legislation and
  positive measures to achieve integration in
  housing, transport, telecommunications, cultural
  and leisure facilities (right to integration)
• consultation of persons with disabilities and
  their representative organisations (right to
  participation)

49
2. Revised European Social Charter 1996

• Collective complaint n13/2002, Autism-Europe v.
  France decision on the merits adopted on 4 Nov.
  2003 (proportion of children with autism being
  educated in either general or specialist schools
  much lower than in the case of other children,
  whether or not disabled, and chronic shortage of
  care and support facilities for autistic adults
  violation of Articles 15 1 (obligation to take
  the necessary measures to provide persons with
  disabilities with guidance, education and
  vocational training in the framework of general
  schemes whenever possible) and Article 17 1
  (right to education by the provision of
  institutions and services sufficient and
  adequate) of the revised European Social Charter,
  either alone or in combination with Article E
  (non-discrimination))

50
2. Revised European Social Charter 1996

• Art. E no independent existence (per analogy
  with Art. 14 ECHR) but broad scope of (Rev)ESC
  (covering, e.g., the right to work, to vocational
  guidance or training, to protection of health, to
  the social protection of the elderly, to
  protection against poverty and social exclusion,
  or to housing)
• Article E not only prohibits direct
  discrimination but also all forms of indirect
  discrimination. Such indirect discrimination may
  arise by failing to take due and positive account
  of all relevant differences or by failing to take
  adequate steps to ensure that the rights and
  collective advantages that are open to all are
  genuinely accessible by and to all (per analogy
  Thlimmenos)

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2. Revised European Social Charter 1996

• When the achievement of one of the rights in
  question is exceptionally complex and
  particularly expensive to resolve, a State Party
  must take measures that allows it to achieve the
  objectives of the Charter within a reasonable
  time, with measurable progress and to an extent
  consistent with the maximum use of available
  resources. States Parties must be particularly
  mindful of the impact that their choices will
  have for groups with heightened vulnerabilities
  as well as for others persons affected including,
  especially, their families on whom falls the
  heaviest burden in the event of institutional
  shortcomings.

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2. Revised European Social Charter 1996

• UN Committee on Economic, Social and Cultural
  Rights, General comment No. 5 Persons with
  disabilities (1994) persons with
  disabilities are clearly entitled to the full
  range of rights recognized in the Covenant.
  (), insofar as special treatment is necessary,
  States parties are required to take appropriate
  measures, to the maximum extent of their
  available resources, to enable such persons to
  seek to overcome any disadvantages, in terms of
  the enjoyment of the rights specified in the
  Covenant, flowing from their disability.