Concluding Observations on the Initial CRPD Report of the EU

European Economic and Social Committee Conference: The Implementation of the UN CRPD by the European Union: Assessing the impact of the UN Committee on the Rights of Persons with Disabilities` Concluding Observations – The way forward

Thursday 10 September 2015,
Thessaloniki, Greece

Session I – The Concluding Observations have been adopted: What next?

Statement by Klaus Lachwitz,
President, Inclusion International, London

Dear Ladies and Gentlemen,

I am a human rights lawyer from Germany. For many years I have worked as a legal advisor for persons with intellectual disabilities and their families.

Let me start with the remark that I am really impressed about these Concluding Observations as they describe the shortcomings of the European Union and its Member States with regard to the implementation of the UN – Convention on the Rights of Persons with Disabilities (CRPD) very clearly and as they summarize recommendations which reflect many claims and requests of Disabled Persons Organisations (DPOs) in Europe as they are, for instance, written down in the Alternative Report of the European Disability Forum (EDF).

We have already learned this morning how the European Union and its institutions intend to deal with the Concluding Observations on the Initial Report of the European Union.
As time is very limited I want to give some hints on the expectations triggered by the Concluding Observations from the perspective of persons with disabilities in Europe and their organisations which are represented in this conference by the European Disability Forum.

I think one of the most important statements of the CRPD – Committee in its Concluding Observations is dealing with the question how to react on discrimination. The Committee does not only submit considerations how to avoid discrimination, but urges the EU to ensure that all forms of discrimination are prohibited. We know that it is fairly difficult for the European Union and its stakeholders to execute such a prohibition as for instance my own country, Germany, so far failed to accept and ratify the comprehensive Equal Treatment Directive 2008 which would extend the level of protection of persons with disabilities against discrimination beyond the sector of employment.

One of the most important requirements for an effective prohibition of discrimination is to provide reasonable accommodation for persons with disabilities in areas of social
protection. health care, education, provision of goods and services etc. In many EU countries this does not work It`s a fact that the majority of EU – Member States has not met the requirements of Art. 5 section 3 CRPD so far to take all appropriate steps to ensure that reasonable accommodation is provided to eliminate discrimination. The reason is that the legal term “reasonable accommodation” is not defined in many national laws of the EU – Member States in such a way that a person with disabilities who is suffering from discrimination can go to the courts to receive instant legal support to fight against discrimination. Practical training of justice personnel is required to implement
the concept of antidiscrimination laws in the European Union and it is of utmost importance that the European Union takes action to start and support such trainings.

What we did not expect in the beginning is the unmistakably clear Observation by the CRPD – Committee in reference to Art. 12 CRPD (Equal Recognition before the Law). There are,
as far as I see, only two sections in the Concluding Observations where the Committee expresses not only concern, but “deep concern” with regard to the acceptance and standard of a human right in the European Union. It`s Art. 12 and it`s Art.29 (Participation in Political and Public Life). The reason is that across the European Union many persons with intellectual or psychosocial disabilities, dementia or severe brain injuries are deprived of their legal capacity which in fact means very often that they are not allowed to take part in elections and that they are dependent from guardians or third persons with similar tasks and rights who decide instead of them where to live, how to live, to receive (or not) inclusive education, where to work etc. These third persons and not the disabled persons themselves decide how to exercise their rights including important human rights such as the right to live independently (Art. 19 CRPD), to express an opinion (Art. 21 CRPD) and the respect of privacy (Art. 22 CRPD).

Already in the Committee`s General Comment No 1 (2014) on Equal Recognition before the Law it is stated that all kinds of substituted decision – making must be replaced by supported decision making. We, therefore, urge the European Union to implement the CRPD – Committee`s recommendation

“to foster research, data collection and exchange of good practices
on supported decision – making in consultation with
representative organisations of persons with disabilities”

and to support projects and training all over the European Union to develop and build up supportive decision –  making concepts as at the time being there is hardly any country in Europe which has implemented Art. 12 CRPD.

The next issue I want to touch is Art. 19 (Living independently and being included in the community). The Committee is concerned that in many EU – countries persons with disabilities still live in institutions or comparable living arrangements rather than in local
communities together with persons of their choice. The Committee claims to foster deinstitutionalisation and to ensure that the European Structural and Investment Funds (ESI – Funds) are not misused any longer for the re – development and expansion of institutions. Instead the European Structural and Investment Funds should be used for the development of support services in local communities and, as mentioned above, for projects and trainings which aim at enabling all persons with disabilities to make their own decisions, to express their will in different formats of communication as described in Art. 2 CRPD and to learn how to live independently in the midst of their local communities.

Finally I want to refer to Art. 24 CRPD (Education). We know that the influence of the EU is fairly limited as it has supportive competence only in the field of education. But proper inclusive quality education of boys and girls with disabilities is a decisive element to succeed in the fight against discrimination and prejudices. We, therefore, welcome the
Committee`s recommendation to evaluate the current situation in the field of inclusive education in the European Union and we suggest to start this evaluation process together with representative organisations of persons with disabilities.

There are still a lot of concerns and recommendations in the Committee`s Concluding Observations which need to be discussed, but I must come to an end now. Let me finish up
with the remark that all activities of the EU claimed by the Committee very much depend on the question whether the EU has the competence to guide the process to implement the Convention on the Rights of Persons with Disabilities. It is, therefore, important – I quote from the Concluding Observations –

“that the European Union regularly updates the Declaration of Competence and its list of instruments to include recently adopted instruments and those instruments that have no specific reference to disability but that are relevant to persons with disabilities.”

Thank you for your attention!

Klaus Lachwitz
Thessaloniki, Sept. 10, 2015

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