European Court of Human Rights Overlooks Right to Inclusive Education for Children with Disabilities

Many children with disabilities throughout the world are denied the right to education.  Further, in countries where they do receive education it is often in segregated settings, away from their peers. Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD) addresses education for persons with disabilities and requires States Parties to adopt inclusive education systems. Inclusive education promotes the education of all children in the same setting with reasonable accommodations that are tailored to the individual needs of students with disabilities. 

The adoption of the CRPD is starting to generate national and international case law that sheds light on long standing discrimination against persons with disabilities in the education sector.  Courts should avoid reinforcing outmoded ideas and stigma against one marginalized group when considering the human rights of another.  A recent decision of the European Court of Human Rights brings this particular concern to the fore.

Horváth and Kiss v Hungary, a case before the European Court of Human Rights (ECHR), involved two young men of Roma origin who argued that their placement in separate schools for children with mental disabilities amounted to discrimination in violation of the European Convention on Human Rights. The Court ruled in favor of the applicants, finding violations of Article 2 of Protocol No. 1 (right to education) and Article 14 (prohibition of discrimination) of the Convention. The Court highlighted that Hungary has a long history of placing Roma children in special schools and that the authorities failed to take into account their specific needs as members of a disadvantaged and historically marginalized group. As a result, the applicants were isolated and received an inferior education, making their integration into mainstream society difficult.

Horváth and Kiss v Hungary focuses on the restricted opportunities of two Romani children as a result of their placement in segregated schools that failed to accommodate their needs and provided them with a substandard education. Ultimately, one applicant was unable to become a dance teacher and follow the same career path as his father, and the second applicant was precluded from becoming a car mechanic. The Court rightly underscored both the applicants’ inability to access mainstream education and the impact of inferior curriculum on their future employment opportunities. At the same time, the Court overlooked the implications of their findings about segregated schools for children with disabilities. If the Court found that the special schools offered a substandard education with inferior curriculum then why did they only focus on the violations that the Romani students experienced? The case fails to address how the rights of children with disabilities continue to be violated in segregated schools.  The ECHR has repeatedly shied away from the underlying issue—that special schools violate the right to inclusive education for all children, including children with disabilities.

The case is reminiscent of another situation in which human rights activists decried the detention of political prisoners in psychiatric hospitals in the former Soviet Union where they were subjected to forced ‘treatment’ and horrific conditions while ignoring the rights of persons with disabilities who were experiencing the same violations.  The Court in Horváth and Kiss v Hungary did not address, even in passing, the placement of children with disabilities in segregated schools, which the Court acknowledged isolated and undermined future opportunities for the two Romani children. 

Denial of equal education to an ethnic minority is a legitimate concern; nevertheless, it is important to recognize that segregated, poor quality schools benefit no one.  The Court missed an opportunity to highlight the right to inclusive education outlined in the CRPD and failed to address the overarching issue that special schools for students with disabilities violate international and regional human rights standards.  

Please see Human Rights. Yes! Action and Advocacy on the Rights of Persons with Disabilities for more on the right to inclusive education for students with disabilities.

Disability and Torture: Special Rapporteur on Torture releases report on abuses against persons with disabilities in health care settings

The adoption of the Convention on the Rights of Persons with Disabilities (CRPD) is re-configuring the interpretation of human rights law within the United Nations human rights system, which has long relegated persons with disabilities to the margins or ignored disability within the human rights framework. Juan Méndez, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, released a report on 1 February 2013, identifying abuses in health care settings that may constitute torture or inhuman treatment.  Although the report breaks some new ground, it also leaves important questions unanswered.

The Special Rapporteur proposes a review of the anti-torture framework, using the CRPD, and examining the context of the rights of persons with disabilities in health care settings.  The report further calls for an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including psychosurgery, electroshock, mind-altering drugs, and the use of restraint and solitary confinement. The report asserts that States Parties have an obligation to end forced psychiatric interventions immediately, and that scarce financial resources cannot justify postponement.

The Special Rapporteur’s report emphasizes the right to community living for persons with disabilities, respecting the autonomy, choices, dignity and privacy of the person involved.  It notes the importance of emphasizing alternatives to the medical model of mental health, including peer support, awareness-raising, and training of mental health care officials, law enforcement personnel, and others. Finally, the report recommends the amendment of laws that permit detention in mental health facilities as well as the use of coercive interventions without informed consent. Legislation authorizing the institutionalization of persons with disabilities without their free and informed consent must be abolished.

While focusing primarily on abuse perpetrated against persons with psychosocial disabilities in health care settings, the report could have been more explicit in explaining that persons with a wide variety of disabilities experience this kind of abuse.  Persons with physical, sensory, and psychosocial disabilities are often detained in institutions under the guise of “health care” or “care” and are subjected to much of the same cruel, inhuman, and degrading treatment.  Additionally, conditions in such institutions often lead to secondary disabilities.  For example, a child with a physical or sensory disability who is institutionalized in an orphanage may acquire a psychosocial disability as a result.  For over 15 years, Disability Rights International (DRI) has carefully documented human rights abuses perpetrated against persons with disabilities in institutional settings around the world.  Recent work by DRI also raises an issue overlooked in the Special Rapporteur’s report, namely, the link between disability and human trafficking.  DRI cited a case in Guatemala, demonstrating that women in a psychiatric hospital were routinely trafficked across the street into a male prison for the purpose of exploitation.

There are some aspects of the Special Rapporteur’s report that fail to evoke the new paradigm reflected in the CRPD. In categorizing persons with disabilities as “suffering from illness,” the Special Rapporteur to some extent perpetuates an outmoded framing of disability.  This should not, however, detract from the significant step of stating, unequivocally, that various forms of treatment of persons with disabilities around the world constitute human rights abuses and often amount to torture.  The effective transition of persons with disabilities from institutions to healthy and supportive community-based living arrangements remains a significant responsibility of the disability and human rights community.

Please see Human Rights. Yes! Action and Advocacy on the Rights of Persons with Disabilities for an overview of the CRPD torture prohibition, as well as participatory exercises related to torture and access to health care in disability contexts.

Disability Rights International also offers reports on the human rights situation of persons with disabilities in institutional settings.

A Step Toward Inclusive Development: The World Bank and Disability

The World Bank has taken an important step toward promoting ‘inclusive development’ for persons with disabilities, the world’s largest minority group.  Persons with disabilities face significantly higher risks of poverty globally due to barriers that limit access to education, employment, and full participation within society.  Compounding this problem, persons with disabilities often do not benefit from international development projects because policies overlook disability issues and/or programming is not designed with persons with disabilities in mind and, thus, is not accessible.[1] The World Bank aims to eliminate poverty in developing countries and now recognizes that persons with disabilities must be included in all Bank funded projects in order to effectively fight poverty. 

The World Bank has initiated a review of its policies with the goal of mainstreaming disability issues and promoting inclusive development.  The Bank Information Center (BIC), in collaboration with the Lebanese Physical Handicapped Union (LPHU), has launched the Disability and World Bank Safeguards Campaign.  The campaign aims to encourage inclusive development by: integrating disability into World Bank processes; ensuring that programmes funded by the World Bank consider disability in both planning and execution; and mainstreaming disability issues.[2]

Development projects that lack accessible infrastructure exclude persons with disabilities from benefiting from an array of public spaces, such as courthouses, health clinics, schools, and employment settings.  Often development institutions invest large amounts of money into buildings that are not accessible to persons with disabilities.  Designing and building accessible infrastructure at the outset of a project is more cost effective than retrofitting ramps, elevators, and other accessibility features down the road.

To provide a practical example, funding a programme to build a school in a developing country is not inclusive if the school is not physically accessible to students with disabilities.  Beyond the physical accessibility of buildings, development institutions must also consider whether programmes are inclusive of persons with disabilities. For instance, development programmes that promote education for all must ensure that: school curriculum is accessible to students with disabilities; teachers and other staff are trained on how to provide reasonable accommodations; parents are aware of their child’s right to an education; and programme activities related to education law and policy frameworks include disability issues. The above illustration provides an example of how disability could be incorporated into education programmes, however, these principles apply across all development sectors.  When planning development initiatives, disabled people’s organizations (DPO) are an invaluable resource to ensure that all project activities are truly inclusive of and accessible to persons with disabilities.

Development projects that are not inclusive and accessible discriminate against persons with disabilities and therefore are not in compliance with international human rights law.  Article 32 of the Convention on the Rights of Persons with Disabilities requires States Parties to ensure that international development programmes are “inclusive of and accessible to persons with disabilities.”[3]

 

The Disability and World Bank Safeguards Campaign represents a significant achievement in advancing inclusive development at the policy and programmatic levels.  Other international development actors should follow-suit by mainstreaming disability as a cross-cutting issue.  By mainstreaming disability work, the international development community can better serve persons with disabilities, a segment of society which is often overlooked under the current development framework.

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[1] Bank Information Center, “Disability and World Bank Safeguards Campaign,” accessed 4 February 2013, http://www.bicusa.org/issues/safeguards/disability/.

[2] “Disability and World Bank Safeguards Campaign,” http://www.bicusa.org/issues/safeguards/disability/.

[3][3] United Nations, Convention on the Rights of Persons with Disabilities, accessed 4 February 2013, http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf.