Despite the existing substantial body of international and European law touching directly or indirectly upon disability, the respect for the human rights of persons with disabilities remains inadequate.
International jurisprudence does not have many good cases on disability rights. Among the cases that do exist, some are even unfavorable for the promotion of disability rights.
How EDF contributes to legal cases?
A violation of a human right of one person with a disability often reflects a systemic violation of the rights of a whole community of people with disabilities. These large human rights violations remain unaddressed because of their complex and institutionalised nature, making victims invisible in the eyes of the law and the society.
That is why we, in close cooperation with the International Disability Alliance and our member organisations have been working on developing a progressive body of case law that takes into account the human rights of persons with disabilities as written in the UN Convention on the rights of persons with disabilities.
We have mainly intervened before the European Court of Human Rights by submitting third party interventions, also called ‘amicus curiae briefs’. We also submitted a collective complaints before the European Committee of Social Rights. We will continue looking into opportunities at other regional human rights mechanisms such as the European Court of Justice or the European Social Rights Committee.
Collective complaints allow individuals and organisations to jointly bring cases to the attention of judicial or quasi-judicial bodies. We have used the collective complaints procedure of the Council of Europe’s European Committee of Social Rights.
In May 2018, EDF and Inclusion Europe, with the support of 5 French advocacy organisations (APF France Handicap, CLAPEAHA, FNATH, Unafam, Unapei) lodged a collective complaint against France before the Council of Europe.
The complaint asserts that France is breaching the legal obligations it committed to in the European Social Charter and the UN Convention on the Rights of Persons with Disabilities.
The collective complaint addresses failures by the French state, such as:
- Lack of equal and effective access to social support services
- Lack of equal and effective access to healthcare
- Lack of equal and effective access to housing
- Lack of essential support to independent living
- Failure in its duty to protect families
- Failure in its duty to protect work-life balance
Third party intervention
A third-party intervention is a submission made by a third party (i.e. not one of the direct parties involved) to an active case. The objective of a third-party intervention is to provide the court with information to bring on the latest standards of international human rights law and comparative jurisprudence and practices and to assist the Court in this way in making its judgment.
Submitting third party interventions has shown to be an effective way to push governments to make significant changes in their laws and policies. A positive outcome in an individual case can bring a broader social change for many people with disabilities in similar situations and set a precedent for other countries.
Third party interventions by EDF and IDA and EDF members
In November 2020, EDF together with Autism Europe, Inclusion Europe, the International Disability Alliance and Mental Health Europe, submitted written comments regarding the interpretation of the Council of Europe’s Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention).
The advisory opinion requested to the Court concerns the legal interpretation of article 7 of the Convention related to involuntary treatment in psychiatry of persons experiencing mental health problems. The third-party intervention focuses on the prohibition of involuntary placement and treatment in psychiatry in line with the right to equality and non-discrimination, equality before the law, freedom from torture, cruel, inhuman or degrading treatment, and the right to live in the community. It is based on the international human rights framework and European development on the matter.
In July 2019, together with the Consiliul National al Dizabilitatii din Romania (CNDR), EDF submitted a third-party intervention in the case MC and others v Romania (Application no 44654/18).
The case concerns allegation of ill-treatment and bullying of a child with psychosocial disabilities at school by teacher and other pupils, as well as, more generally, the issue of access to inclusive education of children with disabilities. The child’s parents complained that they were blamed by the courts for having caused their son’s problems and they were pressured to remove him from the State’s school.
The third-party intervention focuses on States’ obligation to prevent, prohibit and condemn bullying of persons with disabilities as a form of degrading treatment and discrimination, and on the obligation to ensure the right to inclusive education of children with disabilities.
In October 2017, together with the International Disability the Consiliul National al Dizabilitatii din Romania (CNDR), EDF submitted a third-party intervention in the case Stoian v. Romania (Application No. 289/14).
The case concerns notably the right to inclusive education of a person with physical disability (first applicant), who has faced and continues to face many barriers throughout his schooling, including lack of provision of support and negative attitudes by different school authorities. IDA, EDF and CNDR’s third-party intervention focuses on the right to education, by providing the latest international standards, notably the CRPD`s Committee General Comment No. 4 (2016) on the right to inclusive education. It also provides information to the Court some good practices that have been taking place in Europe, including legislation, policies and court decisions upholding and enforcing the right to inclusive education.
In July 2014, jointly with the International Disability Alliance and the Romanian National Disability Council, EDF submitted a third-party intervention to the European Court of Human Rights in the case of Gherghina v Romania (Application no 42219/07).
The complaint concerns the exclusion from university by a student who is a wheelchair user due to inaccessibility of the facilities and failure to provide reasonable accommodation. It raises violations of Article 8 (right to private life), Article 2 of Protocol 1 (right to education) and Article 14 (right to non-discrimination).
On 20 January 2014, together with the International Disability Alliance, EDF submitted joint written comments to the European Court of Human Rights in the case of HP v Denmark (Application no 55607/09).
This case concerns a victim of torture from Iran who was granted refugee status in Denmark where he has been living for over twenty years. Due to the effects of being tortured, he has memory loss and difficulties in communicating and applied for an exemption regarding language requirements to obtain Danish nationality. While the regulations governing naturalisation permitted the granting of an exemption for the language requirement “where the person in question… proved unable to learn Danish to a sufficient degree due to mental disorder, for example as a result of torture”, the Applicant’s exemption request was refused. As a result of the refusal, he was denied citizenship and complains that his continued statelessness breaches his right to private life and constitutes disability based discrimination in violation of Articles 8 and 14 of the European Convention of Human Rights.
On 20 December 2013, together with International Disability Alliance and the Croatian Union of Associations of Persons with Disabilities, EDF submitted joint written comments to the European Court of Human Rights in the case of Guberina v Croatia (Application no 23682/13).
This case concerns a family with a child with multiple disabilities which bought a house owing to the inaccessibility of their former fiat (no lift) and the increasing difficulty in transporting their growing child. The law foresaw tax exemptions for buying property which met “hygiene and technical housing needs” but did not take into account accessibility needs related to persons with disabilities. Applying the letter of the law, the Croatian authorities refused to grant tax exemptions and subsequently dismissed the applicant’s appeals without addressing the issue of the child’s disability and related housing needs. The Applicant claimed violations of Article 1 of Protocol no 1 (right to property) as well as Article 1 of Protocol no 12 (general non-discrimination clause) of the European Convention on Human Rights.
In March 2013, together with the International Disability Alliance, European Network of (ex-) Users and Survivors of Psychiatry and the World Network of Users and Survivors of Psychiatry, EDF submitted joint written comments to the European Court of Human Rights in the case of Stankov v Bulgaria (Application no 25820/07).
This case was brought by a man with psychosocial disabilities who was deprived of his legal capacity, forcibly placed in successive social care institutions and subjected to ill-treatment on account of the poor living conditions and physical violence. The rights invoked are freedom from torture & ill treatment, right to liberty, access to justice, right to private life, and right to an effective remedy.
In March 2013, together with the International Disability Alliance, European Network of (ex-) Users and Survivors of Psychiatry and the World Network of Users and Survivors of Psychiatry, EDF submitted joint written comments to the European Court of Human Rights in the case of Koroviny v Russia (Application no 31974/11).
This case was brought by a man who was arrested for a crime and detained for compulsory psychiatric treatment, the order for which was renewed on several occasions by a court following the finding that the applicant could not be held criminally responsible as it was deemed he was “mentally incapacitated”. He complains of the unlawfulness of his detention, ill-treatment including by being subjected to restraints, unfair trial, and violation of his right to private life covering censorship of his correspondence.
On 31 January 2013, together with the International Disability Alliance, EDF submitted joint written comments to the European Court of Human Rights in the case of Semikhvostov v Russia (Application no 2689/12).
This case was brought by a wheelchair user prisoner who was subjected to inhuman and degrading treatment due to conditions in prison and the denial of reasonable accommodation, claiming violations of Article 3 of the European Convention on Human Rights.
On 2 July 2012, together with the International Disability Alliance and the Helsinki Foundation for Human Rights, EDF submitted joint written comments to the European Court of Human Rights in the case of DG v Poland (Application no 45705/07).
This case was brought by a wheelchair user prisoner who, in the course of carrying out his sentence, was subjected to ill-treatment in prison due to the lack of provision of reasonable accommodation. The amicus brief set out CRPD standards in relation to detention, freedom from torture and cruel, inhuman or degrading treatment and punishment and non-discrimination including the obligation to provide reasonable accommodation.
On 13 February 2012, together with the World Network of Users and Survivors of Psychiatry, the European Disability Forum, and the European Network of (ex-) Users and Survivors of Psychiatry, IDA submitted joint written comments to the European Court of Human Rights in the case of Mihailovs v Latvia (Application no 35939/10).
This case was brought by a man with a psychosocial disability who was placed under guardianship and forcibly institutionalised and subjected to forced treatment and arbitrary detention for more than ten years.
On 16 August 2011, together with the International Disability Forum, the Centre for Reproductive Rights, Interights and the Mental Disability Alliance, EDF submitted joint written comments to the European Court of Human Rights in the case of Gauer and Others v France (Application no 61521/08)
This case was brought by five women with intellectual disabilities who were forcibly sterilised upon the decision of their guardian. Gauer and Others v France joint written comments. The European Group of National Human Rights Institutions also submitted comments to the Court.
On 24 February 2011, EDF submitted a third-party intervention in the case of Dordevic vs Croatia.
This case was brought to the Court by two Croatian persons of Serbian origin: the first applicant is a person with severe and multiple disabilities and the second one is his mother. Over the period of four years, the first applicant was verbally and physically attacked on the account of his disability and Serbian origin by a group of neighbourhood school pupils.
This case was an opportunity for the Court to examine the response to violent crimes against persons with disabilities that, although widespread in many countries, remain misunderstood and, consequently, underreported.
On 24 July 2012, the European Court of Human Rights took a historical decision recognizing the State’s failure to protect a person with a disability and his mother against long-term harassment, thereby violating their human rights. It is the first case recognising hate crime against a person with a disability, an area that has failed to be successfully recognised in many European legal systems.