DREAM ITN
Final Deliverable
Andrea Broderick
Faculty of Law, University of Maastricht
Supervisor: Professor Lisa Waddington
DREAM work package: Non-discrimination, full and effective participation and
inclusion in society
April, 2015
1 1.
Introduction to the Topic & Research Questions.
My research project is entitled “Equality and Non-Discrimination: Full and Effective
Participation in Society for Persons with Disabilities.” My task throughout the research
project was to conduct an in-depth analysis of the core and cross-cutting principles of nondiscrimination, equality and reasonable accommodation under the United Nations Convention
on the Rights of Persons with Disabilities (UN CRPD or UN Convention). Accordingly, my
research thoroughly examined Article 5 UN CRPD (which contains the equality and nondiscrimination norms) and related articles, such as Article 2 UN CRPD (which contains the
definition of reasonable accommodation). The core research objectives of my project were
twofold. The essential aim of the project was to determine the exact meaning of equality and
non-discrimination in the context of the UN CRPD in order to determine how the nondiscrimination tool contained in the UN Convention can be leveraged to promote lasting
reforms and substantive equality for people with disabilities throughout Europe. In that sense,
the project endeavoured to address the gaps between the aspirations of the UN CRPD (which
seeks to ensure equality for persons with disabilities on an equal basis with others) and the
reality which exists on the ground (namely the fact that persons with disabilities still do not
have equal rights in many areas). Another priority for the research project was to investigate
how the non-discrimination and equality norms contained in the UN CRPD have already
influenced, and can potentially influence, the crucial shape of case law and policy.
My first task in the research project was to examine and reflect on the obligation to ensure
equality and non-discrimination in the UN CRPD from a comparative and theoretical
perspective. As such, I lay out the background leading up to the adoption of the UN CRPD, in
order to determine the gaps which existed in relation to the protection of the rights of persons
with disabilities before the adoption of the UN Convention. My research highlighted the
various ways in which the UN CRPD has filled the gaps which existed heretofore. The next
goal of my research project was to definitively interpret the equality and non-discrimination
norms in the Convention and to address the following research questions:
i.)
What is the exact meaning of the equality and non-discrimination norms in the
context of the UN CRPD?
ii.)
How do the concepts of equality and non-discrimination contained in the UN
CRPD fit within the various models of disability and theoretical conceptions of
equality and non-discrimination which have been elaborated to date by scholars?
2 iii.)
If the non-discrimination obligation outlined in the UN CRPD goes further than
previous non-discrimination norms at the international level, to what extent can
this advance the rights of persons with disabilities in the EU and beyond?
The overall aim of this interpretative section, in the context of the thesis as a whole, was to
provide a framework within which to determine the substantive value which the equality and
non-discrimination provisions in the UN CRPD can add to increasing the exercise and
enjoyment of human rights by persons with disabilities. My next research question was to
investigate whether the balancing and sharing of burdens already required with regard to nondiscrimination, and specifically reasonable accommodation (whereby the covered party is
obliged to accommodate the needs of a disabled individual unless this would amount to a
disproportionate burden), can facilitate a greater understanding of how other provisions of the
Convention which are subject to progressive realisation (such as the accessibility obligation)
can be implemented. The final part of the research project entailed a case study on the
Council of Europe. The main part of this case study concerned the influence to date, and the
potential future influence, of the UN CRPD on disability equality case law of the European
Court of Human Rights (ECtHR). The principal research question addressed in this regard
was whether the Strasbourg Court is evidencing a shift in its approach to disability equality
on foot of the entry into force of the UN Convention, in terms of adopting a more substantive
model of equality, signalled by such indicators as de facto reasonable accommodation duties
and a social model of disability. The case-law of the European Committee on Social Rights
was also considered, as well as the general disability policy of the Council of Europe. This
part of the project essentially sought to examine how the interpretation of the equality and
non-discrimination norms in the UN CRPD can be used to expand disability discrimination
claims in the Council of Europe.
2.
My Research Journey.
In terms of the specific research methodology which was employed to interpret the
obligations of States under the equality and non-discrimination norms in the UN CRPD, the
primary point of reference for interpreting Article 5 UN CRPD and related articles was the
text of the UN CRPD itself and the Vienna Convention on the Law of Treaties (VCLT). The
VCLT contains a canon of interpretative principles which are widely accepted at the level of
international law as being the appropriate ones for interpreting the substance of international
3 human rights norms. In accordance with the literal approach to interpretation contained in
the VCLT, my research began with the wording of the provisions under interpretation. I then
looked to the terms of the treaty in their context, as mandated by the systematic approach to
interpretation contained in the VCLT. I studied the preamble and annexes of the UN CPRD
and the general principles (Article 3 of the UN CRPD) and general obligations (Article 4 UN
CRPD) in order to obtain a broader picture of the scope of the meaning of the equality and
non-discrimination norms. Following the teleological approach to interpretation, I then
endeavoured to secure a meaning which was consistent with the object and purpose of the
UN CRPD, contained in Article 1 of the Convention. Finally, as a subsidiary source of
interpretation under the VCLT, I had recourse to the travaux préparatoires of the UN CRPD.
This consists of the official record of the negotiation process which preceded the adoption of
the Convention i.e. the drafting history and the daily summaries. I also examined the General
Comments and Concluding Observations of the UN CRPD Committee, as well as those of the
other core human rights treaty bodies as they relate to equality and non-discrimination norms
in the respective treaties. A further interpretive aid which I used was secondary academic
sources on Article 5 of the UN CPRD and also secondary sources on equality norms in other
international human rights treaties. The methodology in the rest of my research project was a
traditional legal doctrinal approach, whereby I studied and analysed case law and the legal
reasoning of, for instance, the European Court of Human Rights.
My research project as a whole sought to fill the knowledge gaps which exist with regard to
the precise legal interpretation of the equality and non-discrimination norms in the UN
CRPD. While many scholars have written eloquently on the duty to accommodate in the
Convention, my research project aimed to provide a definitive interpretation of that duty and
of the substantive framework of equality within which the provisions of the Convention will
operate. The ultimate goal of my project was to clarify what equality and non-discrimination
means from a legal standpoint and to translate this to State obligations under the UN CRPD.
Undertaking this project has heightened my awareness of the importance of structuring
academic research within a sound methodological framework. It is only within such a
framework that concrete change is possible on the ground, as it provides a solid
understanding of States’ legal obligations and the manner in which this can translate to the
everyday lives of persons with disabilities.
4 3.
My Formation as a Policy Entrepreneur.
My research has shown that the process of change will be a slow and arduous one,
particularly at the level of policy-making and also within the judicial system (both within the
Court of Justice of the European Union and the European Court on Human Rights). These
points will be expanded upon in the next section. In spite of the many challenges inherent in
the process of change, researchers have a role to play in the reform process. Researchers may
effectively contribute to processes of change by spreading their knowledge acquisition
beyond the pages of a dissertation throughout various policy and judicial areas. By providing
a structured interpretation and analysis of UN CRPD rights, DREAM researchers have the
possibility to influence policy and law-making on many levels. Scholars in the disability field
can also contribute to the process of change by increasing awareness of the varied substantive
issues which underlie the common reform agenda in the disability rights movement and by
providing concrete indicators and benchmarks for States grappling with implementation
issues.
The training activities provided at the DREAM network events were hugely beneficial in
terms of exposing researchers to leading agents of change in the disability field. This enabled
us, as researchers, to observe disability policy entrepreneurship in action. Each event brought
together different generations of policy entrepreneurs which enabled the DREAM researchers
to situate our work within that entrepreneurship, to identify the gaps and to highlight areas in
which to move forward in the process of change. In addition to the various training events,
we also undertook internships at various disability organisations. As part of my own research
project, I undertook a 2 month secondment at the European Disability Forum (EDF). The
main project which I was tasked to work on while I was at EDF was an analysis of the
influence and potential influence of the UN CRPD on the evolution of disability rights in the
Council of Europe, as well as the standard of scrutiny adopted by the European Court of
Human Rights in recent cases related to the rights of disabled people under the ECHR. This
involved mapping different judgments of the Court which might have an impact for the rights
of persons with disabilities and also analysing the evolution of disability rights by the Court
in light of the UN CRPD. Working with EDF greatly enriched my research in numerous
ways. I was exposed to the daily challenges of those who are fighting for the human rights of
persons with disabilities. The internship enabled me to see first-hand the various policy and
bureaucratic challenges which are part and parcel of the fight for change and the ways in
which these challenges can be averted and overcome.
5 4.
Tentative Outcomes & Recommendations.
In this section, I will outline some of the principal tentative outcomes of my research and the
main recommendations which I propose at the level of the Council of Europe and the EU:
- Research Outcomes regarding the Model of Equality in the UN CRPD.
The UN CRPD can truly be described as representing the substantive disadvantage model of
equality.1 That model seeks to target deep-rooted structural inequalities, by advocating legal
tools such as positive obligations and reasonable accommodation measures as integral means
by which to eradicate barriers which maintain or perpetuate disadvantage. It contrasts starkly
with the formal equality model, which does not take account of individual or contextual
differences between marginalised and socially privileged groups. Application of the formal
model of equality (while essential in terms of prohibiting direct discrimination) does not
serve to redress the acute disadvantage experienced by marginalised groups in society.
The UN CRPD strengthens the non-discrimination norm at the international level in
numerous respects. The inclusion of the reasonable accommodation requirement within the
non-discrimination provision in the Convention ensures an individualised, rather than a
universal, application of the equality paradigm and has increased the potential for ensuring
substantive equality. It applies the equality and non-discrimination norms across the
substantive provisions of the Convention and, thereby, breathes new life into specific
provisions, in accordance with the lived realities of disabled people. By acknowledging the
fact that disability is an evolving concept, which results from an interactional relationship
between persons with impairments and complex societal barriers,2 the UN CRPD seeks to
target asymmetrical structures of disadvantage and oppression. It essentially shifts the target
of non-discrimination laws from the individual onto the unequal structures in society. Finally,
the UN CRPD seeks to overcome the limitations of traditional anti-discrimination law and
embraces a multidimensional or intersectional approach to non-discrimination analysis. By
that token, the Convention recognises the complexity of remedying structural discrimination
and it acknowledges the fact that disabled people are not only defined by their disability but
1
For a detailed examination of the substantive disadvantage model of equality, see O.M. Arnardóttir, ‘A Future
of Multidimensional Disadvantage Equality’ in O.M. Arnardóttir and G. Quinn (eds.), The UN Convention on
the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Publishers
2009).
2
See Preamble, para. (e) UN CRPD.
6 by the other aspects of their human identity, such as gender, race and age. In spite of these
positive aspects, there are significant challenges ahead in terms of translating this approach
into legislation in Member States and at the European level. There will also be many barriers
ahead for persons with disabilities in their efforts to turn the aspirations of the UN
Convention into individually justiciable rights. In particular, it may be difficult for claimants
to prove cases based on multidimensional discrimination, as the judicial system is often illequipped to deal with this complex form of discrimination. In spite of these impediments, the
UN CRPD still holds great promise for the future application of the equality and nondiscrimination norms in relation to the rights of persons with disabilities. It is imperative,
however, that this potential is properly realised and utilised by policy-makers and the
judiciary.
- Research Outcomes on ECHR Case Study.
My case study on ECHR jurisprudence has shown the important role of alliances in the
process of change. In particular, it has shown the role which civil society organisations have
played in supporting and pushing forward strategic litigation, with the overall goal of
improving the rights of persons with disabilities on the ground. In terms of tangible effects of
the UN CRPD on the case law of the ECtHR, my research has shown that since the coming
into force of the UN CRPD in May 2008, the Court has cited3 the UN Convention on
numerous occasions in the context of relevant international law, in interpreting the provisions
of the ECHR. The Court has also shown some promising signs in its interpretation of the nondiscrimination norm in Article 14 ECHR from a disability perspective. On the other hand,
however, the Strasbourg Court has not yet grasped the importance of the version of equality
which the UN CRPD endorses in terms of remedying the factual inequalities which persons
with disabilities encounter in their everyday lives. I will now elaborate on these remarks
through an examination of a selection of relevant case law of the ECtHR.
The first ground-breaking case in which the ECtHR found disability discrimination contrary
to Article 14, in conjunction with Article 8 ECHR (on the right to respect for private life,
3
See, among others: Kiyutin v Russia, application no. 2700/10, judgment 10 March 2011; Jasinskis v. Latvia,
application no. 45744/08, judgment 21 December 2010 para. 40; Glor v. Switzerland, application no.13444/04,
judgment 30 April 2009, para. 53; Seal v. the United Kingdom, application no. 50330/07, judgment 7 December
2010, paras. 41-43; Kiss v. Hungary, application no. 38832/06, judgment20 May 2010, para. 14; Stanev v.
Bulgaria, application no. 36760/06, judgment 17 January 2012, para.72; D.D. v. Lithuania, application no.
13469/06, judgment 14 February 2012, para. 84.
7 family and home), was Glor v Switzerland.4 The Court made its finding in Glor on account of
the fact that the Swiss authorities had failed to carve out exemptions to a rule which imposed
a penalty tax on persons deemed unfit to perform military service on grounds other than
severe disability. In other words, the State had failed to take into account the specific position
and needs of individuals, such as the disabled applicant in question (a man with diabetes). In
justifying a stricter standard of scrutiny, the ECtHR ruled that States have a “considerably
reduced”5 margin of appreciation in establishing different legal treatment for disabled people,
on account of the ‘need to prevent discrimination against people with disabilities and foster
their full participation and integration in society.’6 In reducing the margin accorded to the
State, the Court recognised the fact that persons with disabilities may require “special forms
of service”7 - in other words, alternative forms of military service suited to the degree of
disability and occupational skills of the individual concerned.8 Although the ECtHR did not
explicitly recognise a right to reasonable accommodation under Article 14, its remarks can be
seen as an implicit recognition of the inclusion of some form of accommodation obligation
within the ECHR’s non-discrimination provision. This may be viewed as a first step by the
Court towards a heightened form of substantive equality in the disability context. It illustrates
the Court’s willingness to consider the potential special measures which States can take in
order to accommodate the needs of and facilitate the rights of disabled applicants. It is also
important to note that the adoption of a stricter standard of scrutiny appears to be influenced,
in large part, by the entry into force of the UN CRPD. This assertion is based on the fact that
the Court referred to the UN Convention as an example of a ‘European and worldwide
consensus on the need to protect people with disabilities from discriminatory treatment.’9
In the subsequent cases of Alajos Kiss v Hungary10 and Kiyutin v Russia,11 the Court
demonstrates an increased awareness of the impact of historical discrimination on persons
with disabilities and links this to the applicable margin of appreciation of States. Alajos Kiss v
Hungary12 related to the automatic disenfranchisement of a man who had manic depression
4
Glor v. Switzerland, application no.13444/04, judgment 30 April 2009.
Ibid, para. 84.
6
Ibid.
7
Ibid, para. 94.
8
Ibid.
9
Ibid, para. 53. 10
Alajos Kiss v. Hungary, application no. 38832/06, judgment 20 May 2010. 11
Kiyutin v Russia, application no. 2700/10, judgment 10 March 2011.
5
8 and was under partial guardianship. The Court categorised persons with mental disabilities as
a “particularly vulnerable group,”13 basing this categorisation on the “considerable
discrimination”14 which they have suffered in the past. In finding a violation of Article 3,
Protocol 1 ECHR (on the right to free elections), the Court made explicit reference to Articles
12 and 29 UN CRPD, which concern the rights to legal capacity and participation in political
and public life, respectively. However, the Court did not specifically rely on the UN CRPD in
its subsequent legal reasoning. Nonetheless, it is submitted that the UN Convention
influenced the Court’s assessment of the merits of the case. The applicant had argued that any
exclusion of people with disabilities from public life must be subject to scrutiny as to whether
it is compatible with relevant international human rights requirements, including the UN
CRPD.15 It would seem that this submission was taken on board by the Court in narrowing
the margin of appreciation in the matter. The Court ruled that ‘the treatment as a single class
of those with intellectual or mental disabilities is a questionable classification, and the
curtailment of their rights must be subject to strict scrutiny.’16 The ECtHR ruled that this
approach was reflected in trends in international law, including the UN CRPD.17
The Alojas Kiss ruling appears, at first glance, to be more promising than it is in reality. The
reason for this is that the Court seems to have based its finding primarily on the absolute
nature of the ban in question, rather than on a consideration of the wider systemic
disadvantage faced by disabled applicants in participating in the political process. The Court
did not take as its starting point a duty to reasonably accommodate the applicant. On the
contrary, it accepted the fact that an individualised assessment of a person’s fitness to vote
could legitimately lead to that person being denied the right to vote.18
It is highly
questionable whether this approach is compatible with the substantive approach to equality
endorsed by the UN CRPD and, in particular the social model of disability which underlies
the UN Convention. It remains to be seen how the Alajos Kiss ruling will be implemented in
practice, in light of the fact that Article 29 UN CRPD clearly calls on States Parties to secure
full participation of persons with disabilities in political and public life, if necessary by
accommodating their specific needs.
13
Alajos Kiss v. Hungary, para. 42. Ibid.
15
Ibid, para. 28.
16
Ibid, para. 44.
17
Ibid, citing paragraphs 14-17 of the judgment in which the Court quoted relevant instruments of international
law, primarily the UN CRPD.
18
Ibid, para. 44.
14
9 The subsequent case of Kiyutin v Russia,19 is noteworthy, inter alia, for the application by the
Court of the UN CRPD’s non-discrimination framework to HIV as a form of disability. The
ECtHR specifically cited the UN CRPD in support of its finding that the term “other status”
in non-discrimination provisions in international legal instruments can be interpreted to cover
health status, including HIV-infection.20 This led the Court to conclude that a distinction
made on account of one’s health status, including such conditions as HIV infection, should be
covered – either as a form of disability or alongside with it – by the term “other status” in the
text of Article 14 ECHR.21 The Kiyutin case is also notable for the fact that the ECtHR
elaborated on its reasoning for applying a strict standard of scrutiny (as it had already done in
Alojas Kiss). The Court specifically acknowledged the extent to which socially-constructed
stereotypes have in the past and, indeed, continue to perpetuate the social exclusion of
persons with intellectual disabilities and those with HIV, respectively.22 However, as already
stated above, the Court did not actually follow through on social model principles in the
Alajos Kiss case. While the Court condemned the considerable discrimination suffered by
persons with disabilities in the context of the right to vote, it did not see fit to consider the
provision of reasonable accommodations as a means of remedying this inequality.
In the subsequent case of I.B. v Greece,23 the Court shows some positive trends in its
understanding of disability equality. That case concerned a man who had been diagnosed
with HIV and who was subsequently fired from his employment, following complaints by
fellow employees that they may be exposed to the HIV virus as a result of the applicant’s
presence in the workplace. The ECtHR held that the applicant was a victim of unjustified
discrimination under Article 14 ECHR, taken in conjunction with Article 8 ECHR.
Surprisingly, the Court did not mention the UN CRPD in its judgment nor the fact that the
UN Convention views disability as resulting from ‘the interaction between persons with
impairments and attitudinal and environmental barriers that hinders their full and effective
participation in society on an equal basis with others.’24 Notwithstanding this, the social
model of disability which underlies the UN Convention very clearly infiltrates the Court’s
legal reasoning in several ways. The ECtHR took the social model of disability into account
19
Kiyutin v Russia, application no. 2700/10, judgment 10 March 2011. Ibid, para 57.
21
Ibid.
22
Alajos Kiss v. Hungary, No. 38832/06, judgment 20 May 2010, para 42 and Kiyutin v Russia, Application no.
2700/10 judgment 10 March 2011, para. 63.
23
I.B. v Greece, application 552/10, judgment 3 October 2013.
24
UN CRPD, Preamble.
20
10 in its analysis of the scope of application of the right to private life under Article 8 ECHR. In
that regard, the Court states that there is no question but that situations involving persons with
HIV come within the ambit of the right to private life under Article 8, on account of the fact
that the HIV epidemic cannot be considered solely as a medical problem. The Court
acknowledged the fact that ‘its effects are felt in every sphere of private life’25 and
specifically noted that the treatment in question (namely the dismissal of the applicant)
resulted in his stigmatisation and that this treatment inevitably had serious repercussions for
his personality rights, the respect owed to him and, ultimately, his private life.26 In deciding
whether there was an objective and reasonable justification for the treatment in question, the
Strasbourg Court again adopted the social model of disability. The Court acknowledged the
fact that ‘HIV-positive persons have to face up to a whole host of problems, not only medical,
but also professional, social, personal and psychological ones, and above all to sometimes
deeply rooted prejudices.’27 The Court specifically recognised that the discriminatory
treatment in question originated in the attitude of rejection adopted by the applicant’s
colleagues when faced with his HIV-positive status.28
These cases demonstrate some positive trends in the Court’s understanding of disability
equality. However, there are many areas for improvement in the Court’s case law. At present,
the ECtHR does not recognise a substantive right to be accommodated under the ECHR as
part of the non-discrimination obligation in Article 14. The Glor case, outlined above, is the
only case in which the Court seemed to read a duty to accommodate into Article 14.
However, this was by no means explicit. De facto disability-related accommodation duties
have increasingly been recognised by the Court in a series of cases relating to persons with
disabilities in detention (under Article 2 on the right to life and, in particular, Article 3 ECHR
on the prohibition of torture).29 The Court in those cases appears to be increasingly referring
to the UN CRPD and its reasonable accommodation provisions. While the ECtHR does not
actually rely on the UN CRPD in any of the cases under Articles 2 or 3 ECHR, it is implicit
in the judgments that the UN Convention, among other legal sources, inspires the Strasbourg
Court’s interpretation of, and reading of some form of reasonable accommodation duty into,
25
Ibid, para. 70.
Ibid, para. 72.
27
Ibid, para. 80.
28
Ibid, para. 77. 29
See, for instance Jasinskis v Latvia, application no. 45744/08, judgment 21 December 2010 (2010) ECHR
2095l Z.H. v Hungary, application no. 28973/11, judgment 8 November 2012; D.G. v Poland, application
no.45705/07, judgment 12 February 2013.
26
11 the substantive rights at issue in the cases. For instance, in the case of ZH v Hungary,30
(which concerned a man in detention who was deaf and unable to speak) the Court cited31 the
definition of reasonable accommodation in Article 2 UN CRPD. In the course of its
deliberations, the Court specifically referred to the UN CRPD and stated that it was
regrettable that the authorities did not take any truly “reasonable steps”– a notion quite akin
to that of “reasonable accommodation” in Articles 2, 13 and 14 of the UNCRPD – to address
the applicant’s condition, in particular by procuring for him assistance by a lawyer or another
suitable person.32
While the Court in Z.H. and other cases is increasingly referring to the UN CRPD in the
context of relevant international law, the Court is not always consistent in its approach.33 The
inconsistency of the Court casts doubt on its willingness to engage with the spirit and text of
the UN Convention in its judgments related to disability equality. It could also be taken as a
sign of the Court’s uncertainty of the relevance of UN CRPD reasonable accommodation
duties in the context of the interpretation of ECHR rights. In addition, the Court’s case law to
date in this area has focused on the substantive rights at issue (most notably the right to life
and the right to be free from torture or cruel, inhuman or degrading treatment or punishment).
By not recognising that a failure to reasonably accommodate, in the exercise of ECHR rights,
is a form of discrimination (as prescribed by the UN CRPD), the ECtHR essentially ignores
the specific disadvantage encountered by disabled individuals in all aspects of their lives.
The UN CRPD is still in its infancy and it is too early to predict with any degree of accuracy
the extent to which the ECtHR will draw on its provisions in the future in its case law related
to disability equality. Notwithstanding this, I will endeavour to outline in the sub-sections
which follow the potential influence which the UN CRPD might exert on the case law of the
ECHR.
30
Z.H. v Hungary, application no. 28973/11, judgment 8 November 2012.
Ibid, para. 19.
32
Ibid, para. 43.
33
For instance, in Jasinskis v Latvia and Z.H. v Hungary the ECtHR refers to the UN CRPD and to its
reasonable accommodation provisions. However, in the subsequent case of D.G v Poland,33 the Strasbourg
Court shows an inconsistent approach to the UN CRPD as a potential guide for the interpretation of ECHR
rights, by completely failing to mention the UN Convention in the course of its judgment. Following on from its
failure to refer to the UN CRPD in D.G. v Poland, in the subsequent case of Grimailovs v Latvia33 the ECtHR
again referred back to the UN Convention in the context of relevant international law.
31
12 - Incorporation of Reasonable Accommodation Duties into the ECHR’s NonDiscrimination Norm.
Arguably the strongest potential avenue for the UN CRPD to exert its influence on the
Strasbourg Court’s jurisprudence lies in the area of reasonable accommodation duties. It is
likely that the contextual and asymmetrical model of equality contained in the UN
Convention will lead the ECtHR towards examining more cases under Article 14 ECHR and
narrowing the margin of appreciation even further. The Court’s acknowledgment in Glor of
the UN CRPD as an example of a European and worldwide consensus on the need to protect
people with disabilities from discriminatory treatment provides some hope for the
development of a reasonable accommodation duty within Article 14 ECHR. In view of the
fact that States Parties are obliged under the UN CRPD to include a failure to accommodate
as a form of discrimination in their laws, combined with the fact that many Member States of
the Council of Europe are also party to the UN Convention, it is enviseagable that the ECtHR
will eventually take this into account in its interpretation of ECHR rights. It is also important
to note that Article 14 ECHR is not the only site for the development of reasonable
accommodation duties and that there is increased scope across the substantive provisions of
the ECHR for development of reasonable accommodation duties, as shown above in the case
law related to persons with disabilities in detention.
- The Social Model of Disability as a Pre-Cursor to a Mainstreaming Approach?
Another way in which the UN CRPD may influence the interpretation of the ECHR is
through greater incorporation by the Court of the social model of disability in its judgments.
There is an increasing tendency in the case law of the Strasbourg Court to place emphasis on
the social construction of identity markers,34 especially in the areas of discrimination on the
grounds of sex and race. The Court is displaying an increasing awareness of the social model
of disability and has even incorporated the social model into its legal reasoning in certain
cases.35 To date, however, the social model of disability has not had a decisive influence in
encouraging the Court to move towards the substantive disadvantage model of equality in the
UN CRPD (as seen by the fact that the Court in Alojas Kiss gives no consideration to the
potential positive obligations which arose in the context of accommodating a man with an
34
See for example, the comments of O.M. Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality,’
in O.M. Arnadóttir and G. Quinn (eds.)The UN Convention on the Rights of Persons with Disabilities: European
and Scandinavian Perspectives (Martinus Nijhoff Publishers 2009) 57/58.
35
See, for instance, I.B. v Greece, outlined above. 13 intellectual disability to participate in the political sphere). It is likely that the Court will
struggle with translating the social model which underlies the UN CRPD into justiciable
rights. Having said this, if the Court were to view disability as a socially constructed issue in
line with the UN CRPD, this might influence its interpretation of the equality norm for
persons with disabilities. It is arguable that the social model embodied by the UN CRPD has
the potential to influence the Court to adopt a mainstreaming approach to disability.
Mainstreaming disability in the context of ECHR rights would enable the Court to uncover
the ways in which judicial decision-making, and society in general, function to maintain
disadvantage. It would involve, inter alia, the recognition that reasonable accommodations
are essential to removing the specific disadvantage experienced by disabled people in
participating in society. In that regard, it is worth noting that the Council of Europe’s own
Action Plan on Disability36 emphasises the importance of mainstreaming disability within its
human rights framework.
- Recommendations at European and Member State Level.
It is vital that the European Court of Justice (ECJ) interprets the concept of “disability” in a
manner which is consistent with the UN CRPD. The concept of disability is not defined in the
Employment Equality Directive,37 in contrast with Article 1 of the UN Convention which
specifically states that persons with disabilities ‘include those who have long-term physical,
mental, intellectual or sensory impairments which in interaction with various barriers may
hinder their full and effective participation in society on an equal basis with others.’38 In its
earlier case law,39 the ECJ had defined disability in terms of the outdated medical model,
which places emphasis on the functional limitations of the disabled person. In more recent
case law, decided since the coming into force of the UN CRPD, the ECJ has attempted to
conceptualise disability under the Employment Equality Directive in accordance with the
concept of disability contained in Article 1 of the UN Convention. In its Joined Cases C-335
and C-337/11, Ring and Skouboe Werge,40 the ECJ noted that the provisions of the UN
CRPD are, ‘from the time of its entry into force, an integral part of the European Union legal
36
The Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in
Europe: Improving the Quality of Life of People with Disabilities in Europe 2006-2015.
37
Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation (OJ 2000 L 303,
38
UN CRPD, Article 1. 39
Case C-13/05, Chacón Navas.
40
Joined Cases C-335 and C-337/11, Ring and Skouboe Werge.
14 order’41 and that secondary legislation, including the Employment Equality Directive, must
be interpreted in a manner consistent with the UN CRPD as far as possible. 42 In that case, the
Court defined disability for the purposes of the Directive as ‘a limitation which results in
particular from physical, mental or psychological impairments which in interaction with
various barriers may hinder the full and effective participation of the person concerned in
professional life on an equal basis with others.’43 In other words, the Court focuses on the
ability to participate in professional life as an essential element of protection under the
Directive’s provisions. This focus is maintained by the Court in the most recent case decided
by the ECJ, namely Case C-363/12 - Z v A Government Department and the Board of
Management of a Community School.44 The Court in that case acknowledged the fact that the
woman in question had a long-term impairment which caused her great suffering (namely,
her inability to conceive naturally). Ironically, the Court went on to hold that ‘the inability to
have a child by conventional means does not in itself, in principle, prevent the commissioning
mother from having access to, participating in or advancing in employment.’45 Despite the
applicant’s recognised disability, the Court held that it was not apparent that her condition, by
itself, ‘made it impossible for her to carry out her work or constituted a hindrance to the
exercise of her professional activity.’46 Lisa Waddington points to the irony in the Court’s
findings, namely the fact that while the Court recognises the applicant’s disability and the
fact that this disability may well have come within the definition of disability contained in the
UN Convention, the Court rules that her impairment did not affect her ability to work and,
therefore, she could be denied a work-related benefit under the Directive.47 Waddington
states that the approach of the ECJ is not compatible with the UN Convention, which adopts a
much broader view of disability, including with regard to employment discrimiantion.48 It is
essential that this discrepancy in the approach of the ECJ is remedied in order to ensure that
the spirit and tenor of the UN CRPD is respected at the level of the judicial system.
41
Ibid, para. 30.
Ibid, para. 32.
43
Ibid, para. 36.
44
Case C-363/12 - Z v A Government Department and the Board of Management of a Community School.
45
Ibid, para. 81.
46
Ibid, para. 81. 47
‘EU equality law and link to the UN CRPD,’ Presentation given by Professor Lisa Waddington, European
Disability Forum Chair in European Disability Law at a conference held at Maastricht University on 3 and 4
April 2014, conference entitled ‘Equal Rights and Accessible Environments: The UN CRPD and EU Disability
Law
and
Policy,’
presentation
available
at
<http://www.maastrichtuniversity.nl/web/Faculties/FL/programme_EqualRightsAndAccessibleEnvironmentsTh
eUNCRPDAndEUDisabilityLawAndPolicy_conference_law.htm>.
48
Ibid. 42
15 At Member State level, it is vital that the Employment Equality Directive should be
interpreted consistently with the UN CRPD. The Framework Employment Directive is not
explicit in recognising a failure to provide a reasonable accommodation as a form of
discrimination, unlike the UN CRPD. At Member State level, those States which have ratified
the UN CRPD should ensure that their national laws define a failure to reasonably
accommodate as a form of discrimination, where they have not already done so.
In conclusion, the DREAM network provided a fantastic opportunity for all researchers
working within it to conduct policy-oriented research and to engage with the major agents of
change in the disability reform agenda. The funding provided by the European Commission,
together with the various placement opportunities and the invaluable support of our research
institutions has enabled each and every researcher to translate the general rights and
obligations of the UN CRPD into practical strategies to achieve substantive reform and
change which we hope will reach into the everyday lives of persons with disabilities. It is
clear from the research results to date that one of the major aims of the DREAM network – to
translate ideas into action – is already in motion.
16