Disability Rights Defenders Newsletter November 2020

In this newsletter, we share court cases and resources with you and others with an interest in disability rights. We inform about webinars, news and job opportunities. This time we want to highlight our upcoming DRD Webinar on “Legal remedies through strategic litigation for the rights of disabled people” that we host together with the project “Article 19 As a Tool” and ENIL, the European Network on Independent Living on the 17th of November, 14.00 - 16.00 CET. We invite lawyers, law students, disability and human rights advocates, disabled people's organisations and all persons with an interest in strategic litigation to join the meeting. We look forward to a fruitful discussion!

1. Court Case

CRPD Committee decides on Swedish discrimination case 
Richard Sahlin who is deaf and uses sign language applied for a job as senior lecturer at Södertörn University. Despite having the right qualifications and being the most qualified applicant for the position, he was not employed on the grounds of the costs for his required sign language interpretation. The incident was reported to the Discrimination Ombudsman (DO) who brought Sahlin's case to the Labor Court. The Labor Court found that Richard Sahlin was not discriminated against in the form of lack of accessibility when the recruitment process was interrupted in view of the costs presented. Together with the member association Disability Rights Defenders Sweden (formerly “The Law as a Tool”), the Swedish Association of the Deaf, and the Swedish Deaf Youth Association, Richard Sahlin took his case to the UN Committee on the Rights of Persons with Disabilities in January 2018 claiming his rights under CRPD Article 27 ( the right to work) and Article 5 (prohibition of discrimination) had been violated. According to the UN CRPD Committee's final decision in September 2020, Sweden did not live up to its obligations under Articles 5 and 27. The Committee found that the costs argument did not hold up and that the university should have had a better dialogue with Richard Sahlin about his required accommodations for the position. Read the Committee’s decision and the Swedish article by Ola Linder.

German court decision: pharmacy has to built accessible entrance
A German court found that a pharmacy has to remove one step at the front entrance so that it is accessible for everyone without help. In addition, the court decided that a removable ramp stored at the counter to be used on demand is not a sufficient accommodation. The verdict is important in as much it orders for the first time a private entity to remove a step to be more accessible. Read the German article about the court decision here.

UK: Landmark review after blind man is told he cannot enter restaurant with his guide dog
"A blind man who was refused entry to a restaurant with his guide dog has instigated a landmark licence review which could set a precedent for disability training in the hospitality industry." Read the whole article here.

UK: Changing Places toilets for severely disabled people to be compulsory in new public buildings
"More than 250,000 severely disabled people will have greater access to public places after the government moved to make Changing Places toilets compulsory in new buildings. Changing Places toilets are larger accessible toilets for severely disabled people, with equipment such as hoists, curtains, adult-sized changing benches and space for carers. A major change to building rules in England will require thousands of large (12m2) and well-equipped accessible toilet facilities to be designed and built into new public buildings, from next year." Read the whole press release here.

Discrimination case: does one have the right to a decision?

The EU anti-discrimination directives require “effective, proportionate and dissuasive sanctions” in the event of discrimination. In a case currently pending before the European Court of Justice, the aim is to clarify whether this also means that there must always be a substantive decision in a procedure - whether there is discrimination or not. The Swedish case concerns a person who felt being discriminated against by an airline through “ethnic profiling”. The airline paid the damages claimed, but refused to acknowledge that it had discriminated. Read more about the case here.

US: Deaf association sues to force White House to use sign language interpreters at coronavirus briefings

"The National Association of the Deaf and five deaf Americans are suing the White House in an attempt to force President Donald Trump and other top officials to have American Sign Language interpreters at Covid-19 briefings. They asked a federal judge to order the White House to add live televised ASL interpretation at all public coronavirus briefings. According to the lawsuit filed in the DC District Court, the White House's failure to provide ASL interpreters during Covid-19 related briefings, including press briefings, is against the law and violates the First Amendment of the US Constitution. Read the full article by CNN here. Read the article by the National Association of the Deaf (NAD) here.

Romania: Constitutional Court strikes down oppressive guardianship provisions from Romanian Civil Code
“On 16 July 2020, the Romanian Constitutional Court struck down as unconstitutional the provision in the Civil Code regarding plenary guardianship (or ‘judicial interdiction’ in a literal translation), putting an end to a legal institution that had survived virtually unchanged since 1864. [...] The Court held that any measure of protection must be proportionate to the degree of capacity, adapted to the life of the person, apply for the shortest time possible, be revised periodically and take into account the will and preferences of persons with disabilities. Notably, the Court mentioned that its decision was guided by Article 12 of the CRPD. This judgment is the latest stage of a legal saga that extended over the past six years, involving Mr. N., a man with psycho-social disabilities and psychiatric hospitals survivor, and his representative, London-based Romanian lawyer Constantin Cojocariu, acting on a voluntary basis.” Read the full article here. Read also the article ‘A legal saga: ‘Mr. N.’s’ journey from the psychiatric hospital to community living via Bucharest and Strasbourg’

The first final judgment for protection against discrimination on the grounds of disability in the area of political and public life in Montenegro
Text by Miroslava-Mima Ivanović: “On July 7. 2020, the High Court in Podgorica approved the Judgment of the Basic Court in Podgorica, which established discrimination against me, Miroslava-Mima Ivanović perpetrated on April 15. 2018. by the Municipality of Kotor, the State Election Commission and the State of Montenegro, denying me the exercise of the right to vote, by not providing conditions for unobstructed access to the polling station (7) Dobrota in Kotor. The approved Judgment of the Basic Court in Podgorica, which was rendered on February 28. 2020, prohibited perpetrators of discrimination from repeating the act of discrimination and ordered them to take all necessary measures to prevent recurrence of discrimination, i.e. to provide conditions for unobstructed access to the polling station, as well as to pay the amount of € 1,500.00 in compensation for non-pecuniary damage. The procedure before the High Court in Podgorica was initiated due to the appeals of the Municipality of Kotor and the state of Montenegro.” Read the full text here.

Substantive equality as the driving force behind reasonable accommodations for pupils with disabilities: the case of G.L. v. Italy
"In G.L. v. Italy, the first section of the European Court of Human Rights decides on yet another case regarding the principle of inclusive education and the right to reasonable accommodations for persons with disabilities. The two most recent cases on inclusive education (Dupin v. France and Stoian v. Romania, decided at a committee level) seemed to have marked a turn in the Court’s appraisal of the right to education and the principle of non-discrimination. With G.L. v. Italy, however, the Court seems to return to its earlier case law, namely that of Çam v. Turkey and Enver Şahin v. Turkey. In the judgment at hand, the ECtHR gets back in line with its promising line of case law on the inclusion of pupils with disabilities and sets a valuable next step in the direction of substantive equality." Read the full article by Merel Vrancken (UHasselt) here.

2. Ressources

International Principles and Guidelines on access to justice for persons with disabilities

UN OHCHR has just announced the release of International Principles and Guidelines on access to Justice for persons with disabilities, a practical tool to support States in designing and implementing measures to provide equal access to justice for persons with disabilities, in line with international human rights standards. The publication is a result of consultations and collaboration with disability rights experts, organizations of people with disabilities, States, academics, among others. PDF versions are available in: English | Français | Español

COVID-19 Disability Rights Monitor Report
In its final report, the COVID-19 Disability Rights Monitor (DRM) Coordinating Group calls for urgent action by States and the international community to halt the catastrophic failure to protect the lives, health and rights of persons with disabilities during the COVID-19 pandemic. The report presents the findings from a rapid global survey of persons with disabilities and other stakeholders which took place between April and August this year. Read more here. 

Adolf Ratzka: National Personal Assistance Policies – what we need and how to work for it 
On 14 September, ENIL organised an online members’ meeting. Adolf Ratzka, a pioneer of the Independent Living Movement in Europe, presented on how to effectively advocate for PA legislation. Read his speech here.

Disability Debrief: an international update on persons with disabilities in the COVID-19 crisis
see the September 2020 edition of Disability Debrief published by Peter Torres Fremlin

How much does aid money support inclusion of persons with disabilities?
A guide for advocates in the disability movement to work with the data generated by the OECD-DAC ‘disability marker’ in aid. Read the guide by Polly Meeks, Centre of Inclusive Policy here. 

Articles and Reports on Inclusive Education
World Education Blog: UNESCO Global Education Monitoring (GEM) and the International Disability Alliance (IDA) published a joint blog article on the growing momentum on the implementation of SDG 4 in line with the UN Convention on the Rights of Persons with Disabilities (CRPD). Read the article here.
The GEM Report 2020: Inclusion and Education can be found here.
The IDA Inclusive Education Report 2020 can be found here.
The GEM Gender Report 2020, A new generation: 25 years of efforts for gender equality in education can be found here.
The GEM and UNESCO Policy Paper: Inclusive teaching: preparing all teachers to teach all students can be found here.

Something to spread: Mental health helplines across Europe
Mental Health Europe (MHE) created a map of helplines and services to support mental health during COVID-19 crisis. Information was gathered with the valuable support of MHE members in 23 European countries. In a few clicks, this interactive map will help to find more details on helplines or services providing mental health support during COVID-19 in your country. Read more here. 

Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
The leaving Special Rapporteur of Health, Dr. Danius Puras, submitted his final report "Right of everyone to the highest attainable standard of health and mental health" to the OHCHR in July this year. The report can be found here.

German Booklet: Is arbitration a successful tool to fight disability discrimination?
The Austrian Disability Equality Act celebrates its 15th anniversary this year. An essential tool of this Act is arbitration. The booklet explains how arbitration works in practice and who can apply for it in Austria. It answers a.o. the following questions: What factors determine the use of the arbitration tool? What factors influence success in arbitration? Is the arbitration tool suitable in practice to remove barriers? Read more about it (in German) here.

Documentary: The Weight of Virus
Feb 2020, Covid-19 began to spread rapidly in South Korea. Daegu, with hundreds of confirmed cases daily, became one of the most affected cities in Korea. The short documentary screened at the Seoul Disabled People's Rights Film Festival reports about the daily life of disabled people in the city in the era of a pandemic, under the regulations of social distance and quarantine. Watch the documentary here.

3. Webinars and Courses

DRD Webinar: Legal remedies through strategic litigation for the rights of disabled people
The ILI projects “Disability Rights Defenders” and “Article 19 As a Tool” together with ENIL,  the European Network on Independent Living are pleased to invite you to the next webinar on "Legal remedies through strategic litigation for the rights of disabled people". The webinar will take place on the 17th of November, 14.00 - 16.00 CET. We are proud to announce the following speakers:
- Mari Siilsalu, lawyer at Article 19 as a tool, Independent Living Institute
- Paul Lappalainen, Swedish/US lawyer, European Equality Law Network
- Ann Campbell, Co Executive Director at Validity Foundation
- Stellan Gärde, Swedish lawyer and author
- Timothy Hodgson, legal advisor at ICJ, lecturer at University of Pretoria
The webinar will be moderated by Ola Linder, Swedish lawyer and project leader of “Article 19 As a Tool”.
We invite lawyers, law students, disability and human rights advocates, disabled people's organisations and other persons with an interest in strategic litigation and look forward to a fruitful discussion. Please, share this invitation and the facebook event with your network. The webinar will take place on Zoom. Register here. 

Free online course on Global Disability: Research and Evidence
On November 30, the International Centre for Evidence in Disability, London School of Hygiene & Tropical Medicine will launch its free online course on Global Disability: Research and Evidence. During the 3 weeks course, you will learn from persons with disabilities, researchers, including researchers with disabilities, and policy makers as we look to enhance our understanding of the importance of evidence, and how research can be conducted, interpreted and used to inform policy and practice. Read more here.

Launch of the Disability Data Advocacy Toolkit
The Stakeholder Group of Persons with Disabilities, the International Disability Alliance and CBM Global invite you to the Launch of the Disability Data Advocacy Toolkit. The aim of the toolkit is to contribute to the growing global dialogue on the importance of data on persons with disabilities, specifically to provide some basic knowledge on data collection, analysis, and use of data for evidenced-based advocacy. Date: Thursday, 12 November 2020, 9 AM EST | 3 PM CET. Accessibility: International Sign interpretation and live captioning will be provided. Register here for the webinar.

Tackling Torture Against Persons with Disabilities in the Context of the COVID-19 Pandemic – webinar series
As the COVID-19 pandemic rages around the world, evidence is emerging that measures taken by states are resulting in severe consequences for persons with disabilities. From brutal enforcement of lockdown orders to the denial of basic and emergency health treatment, persons with disabilities are at risk of experiencing severe pain and suffering with life-changing consequences. Starting in October 2020, Validity  organises a series of specialist webinars for lawyers, legal practitioners and other interested stakeholders on legal approaches for tackling specific forms of torture and ill-treatment which have emerged in the context of the pandemic. The next webinars are: 
November 10: Legal strategies to pursue emergency deinstitutionalisation during the pandemic. 
November 17: Essential services and psychosocial disabilities: Achieving redress for victims of torture during a pandemic

Rewatch ENIL/DPAC Webinar: Can inquiries under the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities improve States’ accountability and facilitate access to Independent Living?

The aim of the webinar is to discuss inquiries on the United Kingdom and Hungary, carried out by the Committee on the Rights of Persons with Disabilities under Article 6 of the Optional Protocol to the UN-CRPD. Activists and allies from the UK share how they’ve used the results of the 2017 inquiry to promote CRPD implementation in their country, while those from Hungary will speak about the reactions to the 2020 report and their plans for follow-up. Staff of the CRPD Committee Secretariat will explain how inquiries under the Optional Protocol are carried out and how the Committee monitors their implementation. Read more here. Watch the webinar here.

Rewatch ENIL Webinar: Why is the EU still investing in institutions for disabled people?

Brussels, 23 September 2020 — On 21st September, the European Network on Independent Living (ENIL) and MEP Katrin Langensiepen hosted an online event to address the key question of why the European Union continues to fund institutions for disabled people. Disabled people, activists, legal experts, representatives of the Committee on the Rights of Persons with Disabilities and the European Ombudsman set out the arguments for stopping investments into segregated living arrangements and sheltered workshops, and called for the full implementation of Article 19 (living independently and being included in the community) of the UN Convention on the Rights of Persons with Disabilities (CRPD). Read the webinar report here. Watch the webinar here.

Rewatch ENIL Webinar: How can we ensure Independent Living for all? – Catering for people with diverse impairments

The topic of the webinar was chosen in a survey sent out to members in June. This was the most popular one, most likely because there are so many misconceptions about Independent Living. Many think that the right to Independent Living does not apply to all disabled people or do not understand the barriers faced by people with intellectual disabilities, autism, or others, in living independently. Personal assistance, a key tool for Independent Living, is also misunderstood and believed to be relevant only to people with physical disabilities. Read more here. Watch the recording of the webinar here.

4. Surveys

Survey: Access to justice and to court for people with disabilities
Barbora Antonovičová, wheelchair user and PhD at the Law Faculty of Masaryk University in Brno, Czech Republic, focuses her doctoral thesis on The Right to Access to Court for people with Physical and Sensory Impairment in the Czech Republic. With this short survey, she would like to get the fundamental insight in the field of access to justice and court for people with disability in different countries. It should not take more than five minutes to fill in the survey. Fill in the survey here.

A survey for persons with a disability who are involved in the built environment professions
As part of an MArch Dissertation research project at the University of Sheffield, a researcher looks for persons involved in architecture who have a disability. The study looks at the representation of persons with a disability in built environment professions, and aims to discuss the potential advantages of designing with a disability through personal narratives. If you are interested, please submit information via this google form. 

5. News

The new International Journal of Disability and Social Justice is now open for submissions
The International Journal of Disability and Social Justice is a new international and interdisciplinary journal in the field of Disability Studies. This Journal and its companion Digest (open-access) will publish cutting-edge scholarship and research by authors concerned with challenging injustices relating to disability and building inclusive societies. Co-Chairs of Editorial Executive: Anna Lawson and Angharad Beckett (Centre for Disability Studies, University of Leeds). Editorial Executive: David Abbott, Theresia Degener, Amita Dhanda, Hannah Morgan, Gerard Quinn, Chrissie Rogers and Michael Ashley Stein. Read more about the journal here.

2020 D-30 Disability Impact List
Diversability announced the 2020 D-30 Disability List, honoring the unique accomplishments of 30 disability leaders globally. Read more about the honorees here.

6. Job opportunities

Validity Foundation is looking for an International Legal Consultant for the ongoing Voices for Justice project
Title: International Legal Expert with expertise in the UN CRPD and the EU Victims’ Rights Directive (2012/29/EU). Project: Information and Communications: Cornerstones of Justice for Victims of Crime with Disability (878604 — InfoComPWDs). Funded by the European Union’s Justice Programme (2014-2020). Duration: October/November 2020 to June 2022. Application deadline: 9th of November. Read more about the position here.

The International Foundation for Electoral Systems (IFES) is seeking candidates for an Inclusion Program Associate position based in Arlington, VA
The Inclusion Program Associate will provide support to technical, subject matter experts and to HQ and field program teams on disability rights and youth engagement. Under the supervision of the Inclusion Specialist, the Inclusion Program Associate will support development and implementation of tools and strategies to increase access to the political process for persons with disabilities and young people. Read more here. 

PhD position in EU project on Protecting the Right to Culture of Persons with Disabilities and Enhancing Cultural Diversity through European Union Law
Maynooth University is seeking a PhD researcher to join the DANCING project team. The project titled DANCING - Protecting the Right to Culture of Persons with Disabilities and Enhancing Cultural Diversity through European Union Law: Exploring New Paths, is a 5-year project led by Prof. Delia Ferri. The DANCING project is funded by the European Research Council. Read more about the position here. Read more about the project here. 

7. Request for information

Request for information by Jos Huys: Inclusion in the Constitution
Text by Jos Huys
On July 10, 2020, the Belgian Senate has approved a proposal to amend the Belgian Constitution with a new article 22ter, that reads as follows (free translation):
“Art. 22ter. Every person with a disability has the right to full inclusion in the society, including the right to reasonable accommodation. The law, the decree or the regulation meant by article 134 guarantee the protection of this right.” The proposal is inspired by the United Nations Convention on the rights of people with a disability, which has been implemented in the Belgian legislation by the law of 13 May 2009. The right to inclusion of people with a disability means that the society has to adapt itself to the diversity of its citizens. The newly proposed article 22ter of the Belgian Constitution aims to a standstill obligation for the federal and regional legislators to respect the actual level of protection of this right to inclusion. But mainly, it aims at a constitutional duty for the authorities of the federal and regional level to implement a active policy of progressive realization of the full inclusion of every person with a disability. It is not for the first time that the Belgian Senate approves a proposal to insert explicitly the fundamental rights of people with a disability in the Belgian Constitution. Two previous attempts have stranded on the premature dissolution of the House of Representatives. The disability community in Belgium unanimously supports the new proposal of the Senate, that has been forwarded on the 13th of July 2020 to the House of Representatives for further discussion and final voting. According to Belgian constitutional law, changes in the Constitution can only be adopted with a majority of two thirds of the votes in both Chambers of the Parliament. This third attempt must be successful! We have to maintain the pressure before our representatives are sent home again for new elections. But the outcome is not sure, as already 13 senators of the two right-wing Flemish parties abstained from the vote in the plenary session of the Senate on the 10th July. They argued that the civil rights of all citizens are already anchored in the Constitution and the specification of these rights for specific target groups has no additional value. However, in 2008, an article 22bis was amended in the Belgian Constitution to explicit the rights of the child, following the ratification of the UN Convention on the rights of the child. So, why shouldn’t we do it over for the rights of people with disabilities? They also questioned the utility of constitutional protection for human rights when these are already enforced by the ratification of an international convention. However, international human rights treaties are almost invariably intended to set out minimum standards. States are permitted and even encouraged to provide more extensive rights in their constitution. Their constitutional courts can then scrutinize national legislation on their compliance with the Constitution. I would be pleased to receive any additional information on the specific rights of people with disabilities in the constitutions of other countries and on the arguments that have been put forward to convince these constitutional legislators. You can send it to my E-mail address Jos.Huys@handicaplaw.be”