HUMAN RIGHTSAND DISABILITY

SPAIN REPORT 2012

Drawn up by the CERMI Delegation for the UN ConventionWith information from CERMI’s Support Committee for the UN Convention on 4 April

2013Approved by CERMI’s Executive Committee on 23 May 2013

www.cermi.eswww.convenciondiscapacidad.es

CONTENTS

I. IntroductionII. Analysis of the situation per article of the ConventionIII. Statistical analysis of enquiries received by CERMI in 2012IV. Reports presented in 2012 by other institutions: Specialist Permanent Bureau

of the National Disability Council, the Ombudsman and related autonomous bodies

V. Bartolomé de las Casas Human Rights Institute of Carlos II University Legal Clinic Finding, Madrid. Masters Degree in Human Rights 2012.

I. INTRODUCTION: CERMI, AN INDEPENDENT CIVIL SOCIETY BODY FOR MONITORING THE APPLICATION OF THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

One of the fundamental aims of CERMI, as the platform representing organized disability in Spain, with more than 7,500 associations and institutions of persons with disabilities and their families, is to defend the rights of this group of citizens. There are more than four million people in Spain with disabilities who, with their families, number around twelve million. In meeting these aims and as a result of our activity, we have identified situations which constitute a violation of the rights of persons with disabilities; these rights are firmly enshrined in the Spanish Constitution (CE) and in the Convention on the Rights of Persons with Disabilities (hereinafter the Convention) itself.

As an independent body monitoring the application of the Convention in our country, we have drawn up the fifth report on Human Rights, Spain for 2012. This report has been prepared to expose such violations in order to ensure that measures are taken to restore the rights of a sector of the population who are experiencing a deficit in citizenship.

Various sources of information have been used, chiefly: inquiries and complaints received by CERMI itself as an independent monitoring body; actions undertaken in the course of the body’s usual work; the collaboration of the associative movement and people affiliated with the various legal areas; and news published in the press which has instigated research on the part of CERMI.

An analysis was undertaken by article in order to structure the information for the compliance reports which the United Nations requires of the States and includes information in relation to:

• Violations: in the form of individual cases, not all those received but those which are the most striking or which serve as examples of violations or actions undertaken by CERMI.

• Good practice. Cases of relevant initiatives towards the enforcement of rights or particularly significant positive action.

• Court rulings: which interpret or apply the Convention.• Other information from institutions committed to upholding the rights of

people with disabilities.

II. ANALYSIS OF THE CONVENTION BY ARTICLE

With regard to compliance with the principle and content of the Convention covered under Articles 1 and 4

VIOLATION OF ARTICLE 4

• The Chamber for Contentious Administrative Proceedings of the High Court of Justice of Navarre overturned two regional orders establishing incompatibilities in the receipt of aid by people with disabilities and in fact resulted in a cut back to the amount and intensity of the benefits.

The rulings, which were in response to two appeals brought by CORMIN (CERMI Navarre), and which were actively driven by its members, concluded that neither rule “conforms to the law” because, amongst other reasons, the affected parties and their representatives had not been allowed a hearing process. The rulings obliged the Government of Navarre to pay the social benefits they had withdrawn retroactively.

The rulings, notified on the 10 and 18 of October by the Chamber for Contentious Administrative Proceedings of the High Court of Justice of Navarre, declared null and void Regional Orders 103/2011, of 21 October, which established a system of compatibilities between different benefits for people in a situation of dependence, and Regional Order 247/2011, of 23 December, which specified how financial aid and support for carers is adjusted for dependent people who wish to remain in their own homes.

This regulation, in addition to reducing the amount received, set a system of incompatibilities in the payment of benefits such that, for example, a person receiving financial aid for attending a day centre for a few hours could not then claim any benefit for remaining in their own home.

The current rulings now award in favour of CORMIN, the body which lodged the appeals against the regional orders, which they opposed from their inception considering them “unfair”, as they ruled as incompatible benefits which are completely complementary, thus restricting the rights of people with disabilities who have extensive support needs for their autonomy and those of their carers.

The rulings fully uphold CORMIN’s demands and overrule the regional orders issued by Elena Torres, the then Councillor for Social Policy, Equality, Sport and Youth, because they failed to adhere to the legally established procedure for enacting this type of rule as, amongst other things, the hearing process for citizens which is required prior to approval had been overlooked. The rulings dictate that, as these were provisions which “affect the legitimate rights and interests of citizens” a hearing process was obligatory and, in any case, the Department did not even claim that there were “serious reasons in the public interest” which might have freed them from initiating this process. “In short - the rulings stress – there is no reason for not having issued the regional orders which would lead to omission of the hearing process”.

Good practice

CERMI welcomed the formation of Parliamentary Commissions on Disability in the Communities of Cantabria and Murcia in 2012.

ARTICLE 5 - Equality and non-discrimination

• Infringements of Law 51/2003, of 2 December on Equal Opportunities, Non-discrimination and Universal Accessibility are being met with impunity with the complete lack of sanction from the state. The lack of political commitment, both from Central and Regional Government, renders the system of Infringements and Penalties of the LIONDAU ineffective and allows the provisions protecting the rights of persons with disabilities to be infringed with impunity.

The Government persists in its failure to comply with the sixth additional Provision of Law 49/2007 of 26 December, which lays out the regime of infringements and penalties in the area of equal opportunities, non-discrimination and universal accessibility for people with disabilities. This additional provision establishes that at least within the four years after the Law’s entry into force, an annual report should be submitted to the Cortes (Spanish National Parliament) giving an account of the actions taken each year in the application of the Law, their financial cost and the programming of future actions. Furthermore, the provision requires that sanctions be imposed and their financial return reported. On completion of this report, the Government has not drawn up or presented said report to the Cortes Generales, and thus continues to be in breach of its legal obligation.

ARTICLE 6 – Women with disabilities

• Via their Women’s Commission, CERMI draws attention to the situation of discrimination and lack of care faced by elderly women with disabilities, who are (often) victims of violence and forgotten in the policies, actions and measures developed to prevent and eliminate violence against women and calls for appropriate measures to combat and bring it to an end.

CERMI, as an organisation with consultative status before the Economic and Social Council of the United Nations (ECOSOC), took part in September 2012 in the public consultation on Violence against Women held by the United Nations Special Rapporteur, Rashida Manjoo, who is completing a study on “State Responsibility for Eliminating Violence against Women” for her Annual Report 2013. CERMI’s Women’s Commission presented a research study which tackles in detail aspects concerning the situation of violence against women and girls with disabilities in Spain and its principal causes, Spanish legislation on the matter and proposals to combat violence against girls and women with disabilities.

Two thirds of women with disabilities are over 60 years of age and many of them live in closed and segregated environments, principally geriatric and psychiatric establishments; they are not able to decide on basic elements of their daily life (such as with whom and how to live, how to occupy themselves or participate in their community).

Women with disabilities are also “poorer”, as a result of not having access to an active

working life and of a social benefits system which failed to cover the structural barriers to inclusion in the labour market that they have faced all their lives, relying on a basic attendance allowance as their sole financial income, “which leads to greater exposure to violence and abuse”.

Furthermore, violence against elderly women with disabilities can take the form of physical, sexual, or psychological abuse, and financial exploitation and neglect; very often their abusers are family members or others in charge of their care.

Similarly, women with intellectual, mental, or psycho-social disabilities, and those who, as a consequence of age, have cognitive impairment or impairment of a different type are at greater risk of being subjected to violence. In fact, the large majority are in a situation of legal incapacitation, which excludes them from access to justice and speaking for themselves. Moreover, on the rare occasions when these women do come forward, their claims are given little credence and they are offered no specific support in police and legal proceedings.

Within the framework of the International Day for the Elimination of Violence against Women (25 November) and of the European Year of Active Ageing and Intergenerational Solidarity, CERMI condemned violence perpetrated against older women with disabilities and called for measures to combat and eliminate it.

• The President of the Observatory against Domestic and Gender-based Violence of the General Council of the Judiciary (CGPJ) wants to include disability in the statistics on abuse.

CERMI has been flagging up the need for the effective inclusion of disability as an indicator and for it to be included in official reports promoting the visibility of violence against women with disabilities. Data disaggregated by gender and other factors such as age, ethnic origin and disability should be systematically combined detailing the prevalence of all forms of violence against women, the causes and consequences of violence against women, and the efficacy of any measures applied towards its prevention and redress.

This demand prompted the President of the Observatory against Domestic and Gender/based Violence of the General Council of the Judiciary (CGJP), Inmaculada Montalbán, to declare herself in favour of including disability as another variable in the collection and preparation of data on abuse which are handled by various institutions of the State and of “developing lines of work specifically targeting this group” within her organisation. This was announced by the news agency Servimedia, specialists in social information.

Proposal for improvement.

The confluence of factors such as gender and disability make women with disabilities a group at serious risk of suffering maltreatment or abuse; figures in Europe suggest that approximately 40% of women with disabilities suffer or have suffered some type of violence. Political groups, equality organisations and society in general are now

becoming increasingly more aware that violence against women exists, hence the increase in programmes for providing information, advice and protection to women who have been the victims of aggression. However, these programmes have not taken into account the particular issues faced by women with disabilities, and therefore have become inaccessible to them.There is a legal obligation on the part of government covered under Article 31 of the Convention by virtue of which it is necessary to “gather adequate information, including statistical and research data, which enables policies to be formulated and applied in order to give effect to this Convention”.In this regard, the identification of data on disability and gender-based violence in the area of justice administration would seem appropriate and entirely useful.To this end, we make two proposals which might improve information in this area: one which could be implemented in the short term and another more ambitious proposal which would have to be assessed in a forthcoming updating of the data collection systems.

Proposals:

First:Crossing information between the data on complaints filed on gender-based violence and the data on official recognition of situations of disability.This would take place via

• Data on gender-based violence identified by the Sistema Integrado de Registros Administrativos de Apoyo a la Actividad Judicial (SIRAJ) (Integrated System of Administrative Records for Supporting Legal Activity) managed by the Ministry of Justice.

• Information from the Base de Datos Estatal de Personas con Discapacidad (National Database for Persons with Disabilities), a national register of assessment files of people with disabilities who have an officially recognised degree of disability. This database is managed by the Ministry of Health, Social Services and Equality, IMSERSO, in particular.

There is previous experience in this regard in the area of employment where the National Database for Persons with Disabilities was crossed with the Active Population Survey.

Second:

On a second more ambitious level, we propose introducing a data collection system into the process for filing complaints to enable information to be gathered as to the disability factor in victims of gender-based violence.

The objective in this second proposal would be to broaden the concept of disability, to identify information in line with the social model of the Convention, and in this regard not restrict the concept of disability to official recognition, but apply it to all situations which in fact fall within the conceptualisation of disability resulting from a permanent

deficiency and environmental barriers which hinder the exercise of human rights (Article 1 of the Convention). The spirit of the law would also be reflected which has extensive subjective scope in terms of defence measures, arbitration and legal character (paragraph 3 of Article 1 of Law 51/2003, of 2 December- LIONDAU).

In this regard three ways of collecting data would be formulated which would have to be defined either complementarily or alternatively, as appropriate:

• A process of “self-evaluation” of the situation of disability, using the criteria proposed by the United Nations’ Washington Group (“short set”) for standardising criteria to identify situations of disability:

Questions on disability proposed by the Washington Group on disability statistics (short set).Introductory phrase:The next questions ask about difficulties you may have doing certain activities because of a health problem.

• Do you have difficulty seeing even if wearing glasses or contact lenses?• Do you have difficult hearing even if using a hearing aid?• Do you have difficulties walking or climbing steps?• Do you have difficulty hearing or concentrating?• Do you have difficulty with self-care, such as washing all over or dressing?• Using your usual (customary) language, do you have difficulty communicating,

for example understanding or being understood?

Possible answers:• No – no difficulty at all• Yes – some difficulty• Yes – a lot of difficulty• It is impossible for me

Including these questions in collecting data for the complaints process would enable information to be obtained on the social disability model per type of disability.

• Possessing an official certificate recognising the degree of disability or being in receipt of a pension from the Social Security due to a degree of permanent total or severe disability (this concept is included in section 2 or Article 1 of Law 51/2003, of 2 December, on equal opportunities, non discrimination and universal accessibility).

• Possessing a certificate of assessment and recognition of a situation of dependence.

ARTICLE 7 – Children with disabilities

• Early intervention services are still insufficient in Spain according to a study published in 2012 by the Federation of Professional Early Intervention Associations

(Federación de Asociaciones de Profesionales de Atención Temprana) (GAT).

According to a research study by the National Federation of Early Care Association Professionals (GAT), early intervention is the set of interventions, aimed at the child population between 0 and 6 years of age, the family and the environment, with the objective of meeting the temporary or permanent needs of children presenting with developmental disorders or who are at risk of developing such disorders.

In relation to the Situation of Early Intervention for children in Spain, GAT reported that by March 2012, there were 534 Child Development and Early Care Centres (CDIAT) and fourteen regions covering early care legally, in other words, there is still no regulation in some regions. This research study shows there is room for improvement: “The population covered (43,986 children) is far less than the estimated population with disabilities from 0 to 6 years (78,397 children) and is very far from reaching the population at risk. There remain many children in need of attention”.

A recent research study by GAT recommended “a legal framework at national level to guarantee minimum levels of Early Care for all the regions of Spain”, “creating new public centres for early intervention and improving those already in existence” and “implementing effective co-ordination between social services, health and education”.

It also highlighted as necessary “substantially increasing the number of Early Care resources so that all needs may be met and in particular to guarantee the quality of services”. They maintain that stable funding for Early Care is necessary to ensure the quality it deserves: “We still uphold the principles of free care and universality incorporated in the White Paper on Early Care”.

CERMI has highlighted that Early Care is vitally relevant, from the perspective of an individual’s life cycle and constitutes the first set of services in which the country’s social policy towards specific individual citizens manifests itself. As the World Health Organisation maintains, delayed development, illness and limited activity in children can lead to disability if their environment does not offer them sufficient support.

Proposal for Improvement.

Early care needs to be regulated from the inclusive and human rights perspective contained in the Convention. In this regard, early care should be approached from a global perspective, respecting diversity; it should cover all aspects of the child’s life, particularly health, education and social aspects, and should focus on the family and the child as the real protagonists. The objective should be that the children’s environment is inclusive and enabling. It should be considered an instrument to enable children to develop in the best way possible and enjoy their human rights, and should be considered an essential tool in educating their families to be able to interact with their sons and daughters. CERMI calls for the government to consider the sector’s position in relation to care plans for children under three years of age in a situation of dependency.

• Children and adolescents are a particularly vulnerable social group.

CERMI held a conference on children with disabilities in March 2012; the conclusions are included in the section below which also contains proposals for improvements in

the protection of children with disabilities, children and adolescents being a particularly vulnerable social group.

The social sector of disability must promote the autonomy and self-determination of children and adolescents with disabilities. As participative and accountable right-holders, their active participation and direct involvement in all matters which affect them must be encouraged, to empower and enable them to defend their rights. To that end, the organisations which represent people with disabilities and their families will call for public-sector authorities to implement the appropriate measures which include the personal assistance of minors with disabilities.

Proposal for improvement.

Conclusions from the CERMI Conference on Children with Disabilities, fewer rights?, held in Madrid on 22 March 2012.Female children and teenagers with disabilities are a group which is subject to discrimination in many forms and are in highly vulnerable situation; the gender perspective has therefore to be included in all policies and actions directed at minors with disabilities to enable the rights of disabled girl children and teenagers to be acknowledged and really and effectively protected.

The families of people with disabilities are the first stage in the inclusion of children and teenagers with disabilities. Statistics show that Spanish households constitute the major source of support for minors. For this reason they must receive all the necessary support, advice, training and information to enable the rights of disabled minors to be upheld in an inclusive and enabling environment. Social Security benefits for the care of children with cancer or other serious illnesses are an excellent example of the support provided to families.

The most recent figures warn of an increase in the number of children in special education centres, in contravention of the Convention on the Rights of Persons with Disabilities which clearly defends the inclusive education of people with disabilities. The concept of excellence must be linked to the concept of diversity.

The media play an essential role in defending and disseminating an appropriate image of children and teenagers with disabilities, avoiding stereotypes and in line with the human rights perspective of this social group; this promotes an inclusive approach to education.

The work of local authorities in protecting minors with disabilities should be valued as they constitute the level of government closest to citizens. The Council of Pozuelo de Alarcón (Madrid) is an example of replicable good practice from amongst all local governments. The social sector of disability and local authorities should be encouraged to collaborate towards promoting and defending the rights of children and teenagers with disabilities.

Reliable data on minors with disabilities is required to enable their correct measurement and statistical qualification. And research studies need to be made on the situation of children and teenagers with disabilities, to provide truly scientific information on the aspects relevant to this social group in vital areas such as violence and child abuse, the situation of minors with disabilities in institutions, etc.

It is vital to amend the Organic Law on the Legal Protection of Minors in line with the Convention on the Rights of Persons with Disabilities, so that it guarantees the fundamental rights of disabled minors. CERMI will watch over the prompt completion of the process of adapting Spanish legislation to the Convention on the Rights of Persons with Disabilities started under the last legislature.

CERMI welcomes the Spanish Government’s intention to support and promote the exercise of the rights of minors with disabilities, and considers their measures towards the defence of minors with disabilities included in the second Strategic Plan on Childhood and Adolescence (Plan estratégico de Infancia y Adolescencia), currently being drafted, particularly positive. CERMI shall monitor the preparation of this Plan, in order to guarantee that it includes the rights of children and teenagers with disabilities and especially that the gender-perspective is incorporated. Likewise, CERMI shall ensure that the interests of minors with disabilities are kept present in actions concerning protection of the family, and in the area of violence against children.

• The Red Estatal de Infancia con Discapacidad (National network for children with disabilities) (REID) has been created.

CERMI has created a national network for children with disabilities to ensure that their concerns and suggestions are heard, giving them a voice, including and making them directly visible on the political agenda of the disability social movement.

With this decision, it is CERMI’s goal to advance compliance with Article 7 of the International Convention of the United Nations on the Rights of Persons with Disabilities, which covers the rights of children with disabilities and makes it mandatory to ensure that children with disabilities have the right to express their own views freely on all issues which affect them, and receive due consideration of their opinions taking into account their age and maturity, on an equal basis with other children and that they receive appropriate assistance in line with their disability and age in order to exercise this right.

The national network for children with disabilities (REID) will cover children with different types of disability, designated by CERMI member organisations, and function autonomously, so that there is no intervention by adults in the free expression of their suggestions and proposals.

This network falls within the new framework of the support structure for CERMI’s governing and management bodies approved by the representative platform for disability for the period 2012 to 2016.

ARTICLE 8 - Raising awareness

VIOLATIONS 8

• Some political decision-makers show little respect towards people with disabilities, inappropriately reflecting their social image in their public statements.

CERMI reproached Cayo Lara, the general political training co-ordinator of the Izquierda Unida Party (IU), for repeatedly using inappropriate language in his public statements, not conveying a respectful, inclusive and normalised image of people with disabilities.

In taking a political position against the hereditary succession of the Monarchy, which was made public, the IU politician attacked this form of government alluding to the fact that it could enable an “idiot” to be the Head of State. His actual words were “and what if he turns out to be an idiot? Would we have to put up with an idiot as Head of State?”

These deplorable statements, particularly hurtful to people with intellectual disabilities and their families, use the most worn out of stereotypes perpetuating the stigma that has been attached to citizens with this type of disability, and which result in the exclusion and discrimination to which they are still subject.

As a politician, while completely respecting his right to freedom of speech, Cayo Lara should be extremely careful not to offend or damage the social image of people with disabilities and their families, who deserve complete protection both ethically and legally.

This repeated behaviour – weeks before this same politician had made completely inappropriate public statements about people with tetraplegia – has to be totally banished from public life, as inappropriate statements on the social perception of citizens with disabilities strengthens the mental barriers which prevent them from being included and having normal access to community life.

• The Chairman of the Spanish Episcopal Conference uses descriptions and expressions that are not at all appropriate to refer to people with disabilities.

State CERMI and Down España voiced their disapproval of certain statements made by the Chairman of the Spanish Episcopal Conference (meeting of catholic bishops), Monsenior Rouco Varela. The statements were published in several newspapers such as the “El Diario de Sevilla” and “El Diario de Cádiz” (in their digital versions of 27 May 2012). The text was as follows: “Recently an anthropologist, an Australian scientist with a German surname, stated that an infant chimpanzee, if healthy, has more rights than a newborn baby with a disease or deformity. If it is missing an arm or is Mongol, its condition is inferior to that of the chimpanzee, which is wonderful and can jump from branch to branch”.

In this context, it was pointed out to the Chairman of the Spanish Episcopal Conference that the manner used to refer to people with disabilities was not appropriate and could be offensive to them and their families. The use of terms such as “Mongol” for people with Down’s syndrome have been removed from the language, they are now referred to as “people with Down’s Syndrome” or “people with intellectual disabilities”.

The way language is used to refer to people with disabilities is important, expressions should be avoided which undermine the real image of a collective which includes more than four million people in Spain.

On receiving the written complaint from CERMI and the Spanish Down Organisation Monsenior Rouco Varela apologised for the words used and argued that the rights of people with disabilities should be upheld.

• SOS Disability – Rights, Inclusion and Welfare to be kept safe – disability mobilised

In 2012, people with disabilities and their families were given significant voice as

citizens in Spain; this mobilisation greatly heightened awareness amongst Spanish society. The day before the International Day for Persons with Disabilities, 2 December, promoted by CERMI and their member organisations, a huge march was held in Madrid to uphold the rights, inclusion and welfare of this sector of society. It was attended by almost 100,000 people; never before in Spain has there been an event of such scope and size, constituting the greatest mobilisation of disability activism to take place here to date.

The march served to promote the rights of people with disabilities and to confirm the firm opposition of citizens with disabilities to government policies and decisions on restrictions and welfare cutbacks due to the economic crisis. In addition to the success of the march, which could be considered one of the greatest purely social mobilisations in recent Spanish history, the SOS Disability march had enormous impact in both national and foreign media and proved to be one of the disability events with the greatest outreach to take place in our country. The march made an enormous contribution to raising awareness on the rights of people with disabilities and set a very valuable precedent which must be built upon in the future.

GOOD PRACTICE 8

• CERMI sought to raise society’s awareness on matters relating to disability on Book Day.

CERMI joined in the activities of Book and Reading day, on 23 April, handing out examples of their literature to promote a real image of issues relating to disability amongst a wide-ranging, non-specialist population.

CERMI publishes more than 20 titles a year, all of them covering themes which concern the reality of disability. CERMI are the main Spanish-language publishers in this area.

ARTICLE 9 - Accessibility

VIOLATIONS 9

• The lack of accessibility to owners’ association buildings is one of the most frequent causes of discrimination suffered by people with disabilities.

The entrance to an owners’ association building with twelve owners, three of whom have reduced mobility and are wheelchair, Zimmer-frame and stick/crutch users, required adaptation. Some of the owners suggested the construction of a ramp where there is a step between the Street and the hallway, of a size that would produce a steep slope and would not leave sufficient flat surface for a wheelchair to remain stable and to open the access door. This was in order to save costs.

The lack of accessibility to owners’ association buildings, which do not comply with legislation on accessibility to housing (Law 49/1960, of 21 July on Horizontal Property and Law 15/1995, of 30 May, on limits of ownership of property for the removal of architectural barriers to people with disabilities), is one of the most frequent causes of discrimination towards people with disability.

• CERMI complained to the Ombudsman about the lack of regulation on the minimum required conditions enabling people with disabilities access to public goods and services on an equal basis to others.

CERMI requested the intervention of the Ombudsman to urge the Government, via the Ministry of Health, Social Services and Equality, to regulate urgently the minimum required conditions enabling people with disabilities access to public goods and services on an equal basis to others, in compliance with the sixth final Provision of Law 51/2003, of 2 December, on equality of opportunities, non discrimination and universal accessibility for people with disabilities.According to Law 51/2003, there is a term of two years from its coming into force for approving basic conditions of accessibility. This term expired in 2005 and it is yet to be implemented, this is undermining the protection of people with disabilities and making them more vulnerable to discrimination and the infringement of their rights.

• CERMI complained to the Specialist Permanent Bureau of the National Disability Council about the lack of accessibility to the Paraninfo Hall of the Complutense University of Madrid.

Discrimination due to a lack of accessibility in a broad sense is a daily occurrence which has still not been properly tackled by legislation enforcers. Although several advances have been made in terms of physical accessibility, legal obligations are not being met with regard to support to communication, including support aimed at cognitive skills.

Lack of accessibility is an impediment to the exercise of human rights such as those of access to education or employment. Complaints such as the above highlight some of the obstacles resulting in low levels of university education amongst people with disabilities. In this specific case, the Complutense University of Madrid (UCM) has implemented a project to guarantee the necessary accessibility conditions.

• The Spanish Confederation of Families of Deaf People (FIAPAS) complained to the Ministry of Health, Social Services and Equality about the lack of accessibility to the 2011 Reina Sofia Royal Disability Trust awards ceremony.

In this case oral communication supports were not put into place for people with hearing disabilities covered under Law 27/2007, of 23 October, recognising Spanish sign languages and regulating oral communication support measures for deaf people, people with impaired hearing and deaf mute people. Oral communication supports covered under the law, such as magnetic loop or subtitling, ensure accessibility for people with hearing disabilities who communicate orally and constitute a great number within this social sector. FIAPAS requested that the Royal Disability Trust should make these communication supports available which also contribute towards reflecting the reality of this sector.

• CERMI complained to the Specialist Permanent Bureau of the National Disability Council about the lack of appropriate regulation of the professional qualifications for subtitling and audio-description.

CERMI complained to the Ombudsman and the Specialist Permanent Bureau of the National Disability Council about the lack of adequate regulation of professional subtitling and audio-description qualifications and requested their intervention to urge the Ministry of Education to regulate the aforementioned qualifications appropriately and thus enhance respect for people with disabilities in the full exercise of their human rights.Subtitling and audio-description are professional activities which are legally recognised by our legal system under Law 7/2010, of 31 March, on audiovisual communication, and as such should be undertaken by suitably qualified professionals who have received regulated training in this area. A failure to do so has negative consequences on the accessibility of content through audio-description and subtitling systems.

The lack of appropriate regulation of these activities constitutes a major barrier to the full and effective equality of persons with disabilities in terms of their right to information and communication.

• The State Confederation of Deaf Persons (CNSE) lodged a complaint regarding the lack of regulatory implementation of the Law recognising Spanish sign languages and oral communication support measures on the fifth anniversary of the legal text.

“As a result of historical demands from the CNSE, the final twelfth provision of Law 51/2003, of 2 December, on equal opportunities, non-discrimination and universal accessibility for people with disabilities (LIONDAU), obliges the Government to regulate on Spanish sign language, in order to guarantee deaf people, and people with impaired hearing the possibility of learning, knowledge and use, and free choice as to the different means for communicating with their environment. Subsequently, more than five years ago, Law 27/2007, of 23 October, recognising Spanish sign languages and regulating oral communication support means for deaf people, people with impaired hearing and deaf-mute people was enacted. Along these lines, we are pleased to observe that seven Autonomy Statutes make specific allusion to Sign Language within their purview, recognising and guaranteeing the right to their use and learning. Similarly the enactment of two specific acts, Law 17/2010, of 3 June, on Catalan sign language and Law 11/2011, of 5 December, regulating the use of Spanish sign language and oral communication support means by deaf people, people with impaired hearing and deaf-mute people in Andalusia, signifies an enormous legislative advance.

Law 27/2007 lays down a series of measures to guarantee the rights of deaf people whether or not they use sign language, although it does not specify their scope a priori. It does, however, in its additional fifth provision, establish the need to create specific standards and implement acts to ensure its compliance.

In the majority of cases, this long-awaited regulatory implementation has yet to filter through to central government and the autonomous regions, preventing it from being made effective on all levels as established by Law. This affects the daily life of deaf people. On this fifth anniversary of Law 27/2007, CNSE call for its urgent implementation, for it to become familiar and used by the different administrations. In this regard it is essential that the necessary implementation measures are adopted to

enforce the right of free choice at every level for deaf people, people with impaired hearing and deaf-mute people in terms of learning, knowledge and the use of Spanish sign languages and the different oral communication support means, in the terms established under Article 2 of Law 27/2007, along with measures to implement the International Convention on the Rights of Persons with Disabilities which regulates the right to recognition and support of their specific cultural and linguistic identity including sign languages and deaf culture.

Education

Operational disparity between the different autonomous communities makes it clear that the area of education is in urgent need of regulation. Therefore, under the terms set by Law, in 2009 a specific Royal Decree should have been enacted on the minimum conditions required for learning, knowledge and use of sign language in educational and learning centres. Yet, almost five years after it was passed, there are still no minimum requirements to which all the Autonomous Communities can refer. We do not have a network of bilingual centres which guarantee the use and study of sign languages. In secondary and university education there are increasingly more deaf students who complain about the insufficiency or absence of interpreters in their study centres. And young deaf people find that their Erasmus learning experience is limited or jeopardised due to accessibility barriers. Today, in Spain, few families and deaf people are fortunate enough to be able to opt for an education using sign language. It is also necessary for Government to fulfil the obligations set out in the fourth and fifth additional provisions of Law 27/2007 and to study the situation of interpreters and Spanish sign-language professionals whose training was not regulated prior to the Law coming into force, as well as a ? study on sign language professionals and the qualifications they require.

Training and employment

“Positive measures” need to be promoted in the area of training and employment to address the disadvantages faced by deaf people, people with impaired hearing and deaf-mute people. At present, it can be seen that many training courses, especially those provided by private organisations, are not accessible to deaf people who use sign language, as they do not have interpreters. Similarly, “reasonable accommodation” measures need to be specified to adapt jobs and accessibility to companies, and thus comply with the State’s general principles of equality of treatment and non-discrimination.

Infrastructure and transport

Furthermore, basic standards need to be set to ensure real accessibility to transport infrastructures and facilities and to land, air and sea transport. Although Royal Decree 1544/2007 regulates these basic conditions and alludes to certain specifications on the use of sign language, these are really minimum specifications which do not cover all means of transport. In no case is there any specific measure guaranteeing full accessibility to communication and information in train stations, air or seaports as dictated under Article 11 of Law 27/2007.

Accessibility to goods and services and social participation

With regard to the access of deaf people to goods and services which are available to all citizens, the final fourth disposition of Law 27/2007 anticipates the preparation of a Regulation which implements the use of sign language, and support for any type of technical help which contributes to eliminating communication barriers in several areas: art, culture, politics, science, sport, leisure, etc. Regrettably, the absence of this regulation, which does not yet exist, seriously limits the social participation of this collective. For example Royal Decree 366/2007 sets out accessibility conditions for people with disabilities in their relations with the administration but does not cover any specific measure to meet the needs of deaf people via interpreters, relegating technical specifications and detail of accessibility conditions and criteria for subsequent development. With regard to social communication media, Law 27/2007 provides that the public authorities shall promote the necessary means for Spanish sign languages and subtitling to be incorporated. In fact, the subsequent General Law on Audiovisual Communication set the minimum percentages that publicly-owned media must respect, although these percentages are not being fully met, limiting access to information.

The fulfilment and equitable implementation of the Act

Finally, for the CNSE, the fulfilment and implementation of Law 27/2007 in addition to being a priority should be equal throughout Spain, so that all deaf people have access to the full exercise of their rights regardless of where they live. Therefore, although this is state regulation, the Autonomous Regions can regulate the way this important standard is to be implemented within their areas, and thus promote the exercise by deaf people of their rights.

PROPOSAL FOR IMPROVEMENTCERMI proposed a series of measures for inclusion in Spain’s Digital Agenda, with a view to ensuring accessibility of Information and Communication Technologies, along with social inclusion and sustainable development.

These proposals seek to develop the digital economy for the growth, competitiveness and internalisation of Spanish companies; to improve e-administration and digital solutions for the efficient rendering of public services, to drive R, D and I in Information and Communication Technologies and to promote training for digital inclusion and of new ICT professionals.

In this regard, the objective is to promote inclusive and accessible technologies as a competitiveness and growth factor and thus achieve an info-inclusion approach, in order to resolve problems of exclusion, poverty, unemployment, social inequality and environmental sustainability, beyond the commercial benefit that conventional innovation policies entail.

It is suggested that accessibility to video games be improved by the use of adaptive technology devices, as these are a leisure phenomenon, an educational resource and a tool for rehabilitation.

In order to ensure access to electronic administration and online public services, so that the most vulnerable groups are able to exercise their rights fully, CERMI suggest that clauses be incorporated in public tenders requiring that all devices, applications and digital services acquired meet accessibility criteria.

In the area of inclusive tourism, CERMI propose developing a public service portal, containing accessible guides and activities, information on tour companies which cover accessibility, public administration programmes which present accessible tourist activities, information on customers with special needs, documents on accessibility and tourism and that the gender perspective be included in the application of these measures.

Along the same lines, they call for research and innovation to be supported in the area of accessible technology, undertaking research studies which include the gender perspective to discover user needs, to analyse the accessible technology offer, anticipate the demand for products and services and to identify trends in technological evolution, in order to define research priorities in the area of accessible technologies and give tips to industry in the development of new products (ICT applied to the construction of an adapted environment, transport and mobility or assistive technologies and robotics for domestic and residential use, amongst others).

Furthermore, CERMI request that a training curriculum be implemented in the area of accessibility, within the framework of Law 51/2003, of 2 December, which establishes measures and specific deadlines for the inclusion of the design-for-all principle in all educational curricula and universal accessibility as the guiding principle and strategy towards real equality of opportunity.

In this regard, they seek to generate a market of professionals with technical skills in Design for All to improve the quality of products and services as a result of the future intervention in the market of these professionals and to promote greater access to the work place for people with disabilities who are professionally qualified.

Finally, CERMI flags up the need to support the social sector in the inclusion of vulnerable groups, in order to prevent the digital divide amongst certain social groups. To that end, they propose promoting the continuation of the Avanza Plan to support programmes which could be developed by non-profit organisations of the Third Social Action Sector, aimed at promoting the digital inclusion of particularly vulnerable social groups, such as people with disabilities and the elderly.

ARTICLE 12 – Equal recognition before the law

• The European Council Human Rights Commission requested member States to implement a series of recommendations to safeguard the legal capacity of people with disabilities.

With a view to guaranteeing the effective exercise of the legal capacity of people with

intellectual and/or psycho-social disabilities, the European Council Human Rights Commission urged States to ratify the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol and to adapt local legislation to the provisions of the Convention, especially in relation to persons with disabilities exercising their legal capacity .

In this context, it commissioned the development of alternatives for support in decision-making for people with disabilities in need of help in making decisions or communicating their decisions. As mentioned, rigorous measures need to be adopted to ensure that any support in decision-making should respect the person with a disability and their preferences; it should contain no conflict of interests and be subject to legal revision. The interested party must have the right to participate in any revision proceedings and have appropriate legal representation.

With regard to the above, the States were commissioned to involve people with intellectual and psychosocial disabilities, and the organisations representing them, in the process of amending legislation on legal capacity and the development of support alternatives in decision-making.

The Human Rights Commission, for its part, recommended the abolition of mechanisms which provide for total incapacitation and plenary guardianship. It also commissioned the revision of current legal proceedings so as to guarantee a person under guardianship the possibility of instituting judicial proceedings to contest guardianship or how it is administrated. Likewise, it recommended ending involuntary commitment considering that any confinement of a person with a disability without their consent should be considered deprivation of their liberty under the terms established in Article 5 of the European Convention on Human Rights.

The impossibility of preventing the entitlement to property of persons with disabilities merely on the grounds of disability or being subject to legal guardianship was highlighted. The right to property is contained within the right of the individual to inherit goods and take control of their own financial affairs, the right to a family life, to consent to or refuse medical intervention, to vote, to freely associate and to have access to justice on an equal basis to others.

Finally, the Human Rights Commission recommended that the States should enact legislation obliging the government, the judicial systems, health providers, banks, insurance providers, amongst others, to make reasonable accommodations allowing people with disabilities access to their services.

ARTICLE 13 – Access to Justice

• Proposals for the creation of a specialised prosecutor for the protection of the rights of persons with disabilities and vulnerable elderly people.

In March 2012 the lack of specialisation in the framework of protection for the elderly and persons with disabilities was addressed in the Specialised Prosecutor’s

Office and it was proposed that a post should be created for a prosecutor specialising in the protection of the rights of persons with disabilities and vulnerable elderly people.The proposal from the Public Prosecutor’s Office signifies a consolidation of the right of access to justice, Article 13,2 of the Convention, which covers the need for specialisation of the courts, the Prosecutors Office and legal and social operatives, and the multidisciplinary collaborating bodies.

CERMI, with the support of legal operatives present on the Justice and Disability Forum of the General Council of the Judiciary, raises the issue that the lack of specialisation of Prosecutors in charge of the Service for the Protection of people with disabilities and guardianships, within a very broad common area of Civil Law, currently present in all Provincial Prosecutors’ Offices, is obstructing and interfering in the amount and quality of the work undertaken in the defence and protection of the rights of people with disabilities and is hampering consolidation of the right of access to justice, Article 13,2 of the Convention, which recognises the need for specialisation of the judiciary bodies, the Prosecutor’s office and legal and social operatives, and the multidisciplinary collaborative bodies.

The creation of a Specialised Prosecutor would enable a better service in the “public and social interest” as enshrined in Article 124 of the Spanish Constitution.

• The Head of the Criminalistics section of the Institute of Legal Medicine of the province of Santa Cruz de Tenerife complained about the lack of accessibility to the legal building of Courts nº 1 and 5 of la Orotava.

The complaint was filed before the Judge of First Instance and Instruction of Court number 2 of La Orotava, Autonomous Region of the Canary Islands. The Courts of La Orotava, are inaccessible to people with motor disabilities, as the access routes to the buildings have stairs which are impossible for people using crutches or wheel chairs to climb, in contravention of Article 54 and subsequent articles of the 1982 LISMI and thus infringe the right to equal opportunities and non- discrimination in failing to comply with the accessibility requirements set out in Articles 4 and 10 of Law 51/2003 of 2 December, the accessibility plan of 2003 to 2012 etc., despite the interior of the building having recently been thoroughly refurbished to house the Court of First Instance and Instruction No 5, which started operation on 31 December 2011.

According to the complaint lodged by the medical officer, this limited accessibility to the Courts of the First Instance and Instruction, in a building which in itself is not very accessible because of its street paving, steep slopes and narrow pavements, is not acceptable and its reparation cannot be postponed since the entry into force of the Convention.

As this building houses two of the five courts of the judicial district of La Orotava, its inaccessibility impedes people with motor disabilities accessing justice on an equal basis to others, in direct contravention of Article 13 of the Convention since, because they cannot enter the premises of the Court representing them, they are obliged to

go to a different, accessible building for any legal proceedings.

ARTICLE 14 – Liberty and security of the person

• The Constitutional Court decided to grant amparo (constitutional protection) to a person with a psycho-social disability who had been admitted as an emergency to a psychiatric unit against his will as they considered that the person’s personal liberty had been infringed.

The Spanish Constitutional Court decided to grant amparo to a person diagnosed with bipolar disorder and confined as an emergency in a psychiatric centre against their will on 2 May 2007 in the Mental Unit of the University Hospital San Cecilio de Granada, Autonomous Region of Andalusia. The presiding Court received communication of this the next day, but issued their ruling late, when the patient had already been medically discharged, 14 days after the legal term of 72 hours.

The ruling of the Constitutional Court awarded in favour of the person who had been granted amparo when he complained that he had not been correctly informed of his rights or been allocated a defence lawyer and barrister, neither had certain tests been undertaken. In this regard, the claimant criticised the fact that the judge had not taken into account his siblings’ statement on the family dispute with his wife; it was she who requested the confinement.

The magistrates added that the hospital and medical officer’s report did not clearly argue the need and proportionality of the measure nor did it explain why care at an outpatient centre would not have been sufficient.

The ruling, of 2 July 2012, declared the decrees of the Court of First Instance number 16 of Granada ordering the confinement null and void. In their judgement, the High Court highlighted that “this is the first application for amparo in which a case of urgent psychiatric confinement has been prosecuted from the perspective of the fundamental right to individual liberty”. It also called for the legal system to regulate these types of situations “as soon as possible by means of an organic law” and drew attention to the fact that this had been requested in the past and that the request had been ignored.

PROPOSAL FOR IMPROVEMENT

- The revision and amendment of legislation on the involuntary commitment of people on the grounds of “mental” disorders regulated in Article 763, first and second paragraphs of Law 1/2000, of 7 January, on Civil Procedure, being a measure which affects the fundamental right to individual liberty of Article 17.1 of the Spanish Constitution. In any case, involuntary commitment on the grounds of disability, especially of persons with mental illness or intellectual disability is in breach of the Convention and must be abolished.

- Passing a Law to Protect the Rights of Persons with Disability held in institutions, which shall only be acceptable if the requirements are met of Article 19 of the

Convention.

As has been mentioned in previous Human Rights reports, it is important for a community care resources network to be set up in order to make reform viable and avoid these types of situations; this is called for by the FEAFES organisation.

ARTICLE 15 – Freedom from torture or cruel, inhuman or degrading treatment or punishment

• CERMI rejected the amendments to safety measures introduced by the Preliminary Draft of the Organic Law amending Organic Law 10/1995, of 23 November, of the Criminal Code.

CERMI rejected the amendment covered in the Preliminary Draft of the Organic Law amending Organic Law 10/1995, of 23 November, of the Criminal Code, presented for consultation by the Ministry of Justice, because it eliminates two limits set by the current Law in relation to security measures. The Preliminary Draft puts an end to the regulatory provision prohibiting the imposition of a security measure that is more severe or of a longer duration that the penalty available in abstract for the offence committed (Article 6.2 Criminal Code) and that which provides that liberty-depriving measures may in no case exceed those covered by the penalty available for the offence committed (Article 95.2 of the current Criminal Code). In this context, the Preliminary draft amends Articles 101 and 104 of the current Criminal Code, removing these limits.

In this regard, CERMI requested the Government to eliminate the abovementioned amendments and prevent the disproportionate and abusive limitation of the right to liberty of persons with disabilities (intellectual disability or mental or psycho-social illness) when this is the reason for their lack of legal responsibility, the period of deprivation of liberty should be strictly limited. Imposing a deprivation of liberty exceeding that covered by the penalty available for the offence committed, entails defenselessness and a violation of legal security for people who lack legal responsibility due to their disability. This also contravenes the Spanish Constitution and the Convention as a serious infringement of the right to equality and non- discrimination.

The amendments introduced by the Preliminary Draft – a proposal – makes the limits to the law operate against the person lacking legal responsibility who is termed thus due to their disability, which could result in the absurd circumstance that nobody with mental illness or intellectual disability should claim their condition, they should even conceal their condition; this would only result in a violation of their right of equality before the law and access to justice.

ARTICLE 16 – Freedom from exploitation, violence and abuseARTICLE 17 - Protecting the integrity of the person (physical and mental)

• CERMI commenced negotiations in 2012 with the Ministry of Justice to amend the Criminal Code to remove the decriminalisation of sterilisation without the

express consent of the interested party if they are a person with a disability..

This is perhaps the greatest, legally permitted violation of the rights of citizens with disabilities which has existed throughout our legislation and must be amended as soon as possible to uphold the human rights of people with disabilities.

Forced sterilisation is still practiced on women and girls with disabilities, especially girls and women with intellectual or psycho-social disabilities, without their consent or their understanding the specific purpose of the operation, and under the pretext of protecting the welfare of disabled people.

Article 156 of the Spanish Criminal Code allows the forced sterilization of people with disabilities. The sterilization of disabled people who have been legally incapacitated, without their consenting to this mutilating practice is allowed under our legal system. Article 156 of the Criminal code provides that “… the sterilisation of an incapacitated person suffering from serious mental deficiency shall not be punishable when this is carried out pursuant to the overriding criteria of the best interests of the incapacitated person and has been authorised by a Judge, either in the actual procedure of incapacitation, or through voluntary jurisdiction proceedings, processed thereafter at the request of the legal representative of the incapacitated person, having heard the opinion of two specialists, the Public Prosecutor and having examined the incapacitated person”

CERMI, from its position as a political platform representing civil society organised around disability, has been upholding via different actions, the need to amend the Spanish Criminal Code to adapt it to the content of the Convention. As a result of this activity a process of dialogue started in 2012 between CERMI and the National Government, and is expected to reach a positive conclusion resulting in amendment of the legislation on forced sterilisation to bring it in line with the Convention.

Likewise, linked to the possibility of removing Article 156 of the Criminal Code allowing the sterilisation without consent of women with disabilities, CERMIS’s Gender Commission and the Chairperson of the European Disability Forum’s Women’s Committee, Ana Peláez, in the framework of these negotiations condemned the fact that there are centres and residential homes which demand that women with intellectual disabilities or mental illness should be sterilised as a condition for admittance.

PROPOSAL FOR IMPROVEMENT

Amendment of the Criminal Code to remove the decriminalisation of sterilisation without the express consent of the interested party if he or she is a person with a disability.

VIOLATION 17

• People with disabilities in a situation of dependency are at greater risk of experiencing situations affecting their mental and physical integrity.

A woman with a high degree of physical disability, who had undergone surgical intervention for a brain tumour, and who presented with daily epileptic fits, loss of balance, sight loss and serious mobility difficulties, complained to CERMI about the lack of assistance and protection provided her against verbal and psychological abuse from her husband. She described a particular situation which appeared to be evidence of abuse on the part of her husband.

CERMI provided her with legal advice. She was put in touch with aid services for women suffering abuse to assess her situation and was advised to request that her degree of disability and, if relevant, her situation of dependency be assessed in order for her to qualify for public aid.

ARTICLE 18 – Liberty of movement and nationality

• The lack of accessibility of procedures for renewing the National Identity Document (DNI) caused a person with a disability numerous problems.

This person, with cerebral palsy and recognised disability of 69%, went to the police station where he was informed that he had to ask for an appointment and could only do this by telephone or Internet and not in person. The telephone number given, 902247364, leads to an automated process of instructions with no accessibility conditions for people with skill difficulties and problems with speech. This resulted in the machine failing to understand the person’s speech obliging them to ask a third party to request the appointment after trying at least eight times.

Law 51/2003, of 2 December, on Equal Opportunities, non-discrimination and Universal Access sets the terms for protecting the rights of people with disabilities, covering the measures to be adopted to prevent the violation of fundamental rights. In particular, Royal Decree 366/2007, of 16 March, establishing conditions of accessibility and non discrimination for people with disabilities in their relations with the General State Administration. Article 2 of this Decree establishes that in line with the final fifth provision of Law 51/2003 of 2 December, “action by the General State Administration shall ensure the effectiveness of the rights of citizens with disabilities in their relations with the Administration” and to this end relates the means to ensure access on an equal basis to others, such as compliance with accessibility standards, means of positive action, the removal or correction of discriminatory provisions or practices and even providing citizens with human means and support and supplementary materials so that they may exercise, in a regular and normal fashion, the rights to which they are entitled.

Significant advances have been made to enable all citizens’ access to the procedures and information offered by the Ministry for the Interior in compliance with legal obligations. In this context, it is essential that the Ministry’s website is accessible.

Nonetheless, we understand that certain circumstances such as the above, where there are problems with speech and manual skills making it impossible to use a telephone or conventional computer keyboard, justify a personal attention service, either one-to-one or over the telephone, to enable people with these types of

difficulties to request an appointment independently. In this specific case it would have been a good idea if the civil servant attending the person in the police station had allowed them to make the appointment rather than recommending they use the telephone service.

ARTICLE 19 – Living independently and being included in the community

• The Council of Europe’s Commissioner for Human Rights requested the member States to make a series of recommendations to safeguard the rights of people with disabilities to live independently and to be included in the community

In order to ensure the effective exercise of the right to live in the community of people with disabilities, on 13 March 2012 the Council of Europe’s Commissioner for Human Rights requested member States to ratify the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol and adapt their policies and local legislation to the provisions of Article 19 of the Convention, which uphold the right of all people with disabilities to live independently and be included in the community.

To this end, a series of recommendations were made to member States, many of which suggested that, rather than confining people with disabilities in institutions, they should be offered community support services with measurable objectives and strategies to monitor their progress in clear and prearranged deadlines, allocating the necessary budget and resources for this and ensuring that this transition process guarantees the full implementation of the right to live in the community under the conditions set by the Convention.

Other recommendations include: guaranteeing the exercise of the right to legal capacity of all people with disabilities in making decisions, including those affecting their right to live independently and be included in the community, by means of appropriate decision-making support, where necessary; institutions of confinement should adopt a policy of non-admission to prevent the readmission of people with disabilities; a service plan should be developed and implemented for personal assistance, access to housing, employment and family support to prevent the person with disability from being isolated within the community and to ensure that support needs do not endanger their full and equal participation and inclusion in the community; a support plan for families with children with disabilities should be implemented to guarantee the child a satisfactory life within their family and community and to avoid isolation and institutionalization; establishing an enforceable subjective right for disabled people to receive a level of support to guarantee their dignity and their inclusion in the community; reviewing the nature and purpose of services offered to people with disabilities so that they can lead the lives they wish, maximising their freedom of choice and monitoring that support services are designed so as (not) to compromise this choice; guaranteeing independent monitoring mechanisms which entail effective follow-up on a national level ensuring that the human rights of the residents of institutions are upheld (until these are eliminated) and also of people using community support services, monitoring their quality and accessibility; and ensuring that people with disabilities and their representative

organisations are involved and fully participate in the planning, execution and supervision of the application of the right to live in the community.

VIOLATIONS 19

• A community association decided to hold neighbourhood meetings in a place which was inaccessible for a disabled neighbour, even though they could have chosen an accessible venue.

The disabled neighbour, with a recognised degree of disability of 67% and a wheelchair user, a resident of Barcelona, received the annual invitation to attend the Resident’s Committee Meeting from the administrator of the car park of his home, in which he owns a parking space. This meeting was to be held in basement 4 of the building which can only be reached using the stairs or the very steep ramp for vehicles. The disabled neighbour sent a letter to the administrator sufficiently in advance requesting that the meeting should be held on basement 1 (where it was held in 2011). He received the answer that the Committee would be consulted.

On the day of the meeting, he received the reply that the Committee opposed changing the venue for the meeting resulting in the owner not being able to attend it. These events happen all too frequently and demonstrate a lack of social awareness which results in serious discrimination.

• The System for Autonomy and Care for Dependency (SAAD) is failing to respect the mandates of the Convention, which entail, amongst other things, the principle of the participation of the people at whom it is directed.

As reported by CERMI on previous occasions, SAAD is failing to comply with many of the principles, values and mandates of the Convention, specifically with regard to the principle of personal autonomy, the right to participation and the right to independent living and being included in the community. In this regard, CERMI’s position is reflected in Human Rights Reports 2008, 2009, and 2010 and, in particular, number 3 of the Convention collection includes an analysis of the conflict between Law 39/2006 and the International Treaty on the human rights of persons with disabilities.

CERMI receives numerous complaints from users who have been forced to accept individual care programmes which they have not participated in drawing up, and they have had no say in their application as certain types of care do not allow a choice of service provider; this occurs in domiciliary care. These terms for service provision are in contravention of Article 19, and others, of the Convention.The most contentious issues refer to the lack of direct participation on the part of the user in the design of the service, to the limitations of a personal care assistant only being provided for people who study or work, greatly restricting the process of inclusion and social participation of people who need more support and who do not study or work.In 2012 a person in a situation of dependency who had been recognised as having a sufficient degree of disability to be awarded the services of a personal assistant, but who was denied this service, made the following arguments:

“I require a personal assistant to enable my personal autonomy for numerous activities which I cannot perform without help, such as being accompanied when I need to use a public convenience urgently outside my own home (being transferred onto toilets, which although adapted for the disabled, I find difficult to use without help due to the nature of my disability), to do my shopping where I have to pick up and carry objects, or to purchase objects for personal use such as clothes, shoes, etc., which I need to try on and cannot do so without help. As I have to do this alone at the moment and can only do so with great difficulty I find myself in a situation where I constantly have to ask for help from passersby, shop staff, etc. I also need to be accompanied and helped by a personal assistant for the numerous and complex annual procedures for grants and different resources that I have to request from the authorities every year due to my disability (presenting requests in registries, compiling the many different certificates and documents which have to accompany each request, each in a different place or administration, etc.) and when I cannot perform these procedures myself I have nobody to help me and I have to stop claiming this help. I need to be accompanied and helped by a personal assistant in performing other personal business, of varied types, and which everybody needs to do and which in my case, given my limitations, I often have to do under extremely difficult conditions as not everywhere is accessible. I very often have to ask a passerby to go in to the establishment or office to request that somebody come out to help me on the street, as I do not have the option of somebody else doing this for me under the correct conditions. I need to be accompanied and helped by a personal assistant to help me acquire and use a vehicle of my own to be able to get around like any other citizen (being driven by the personal assistant), which I cannot do at the moment as I cannot drive and do not have this extra help. I need to be accompanied and helped by a personal assistant to use public transport of various types in the correct conditions, which although they have been adapted, given my condition (user of a wheelchair with a motor) it is better for me to travel accompanied to be helped going up and down ramps which are often steep (making it safer for me), to exit with the necessary and appropriate help when the access route to this transport for people with reduced mobility (PRM) does not work or is entirely insufficient (this is very frequent in this country), to attach the safety belt properly in the place reserved for PRM, to press buttons in lifts which I cannot reach, to press public attention buttons situated at a height when I find that access for PRM is closed and I have to ask for them to be opened, etc. For somebody to go up to the driver to pay for my ticket, very often the driver cannot be bothered to come up to me to charge or punch my ticket, etc. Very

often I have to ask other passengers to help me with these difficulties, which is not always successful and is not pleasant for me. I need to be accompanied and helped by a personal assistant so that I do not have to attend medical appointments or tests, etc., on my own or leisure activities, cultural and social events, etc., which I always have to go to on my own at the moment. I even need their help in putting on and taking off my winter jacket or going to the toilet, in an emergency I have to ask for help from members of the public. It would also be nice to have help for many personal activities in the home which I cannot do without help and which often are not included in the work of a home help. I need to be accompanied and helped by a personal assistant so that I can travel like anybody else when I need to and be helped with my luggage and the adaptations I need, and in personal tasks in my accommodation, such as: washing and basic functions like going to bed or getting up and which I cannot do by myself outside my own home due to my disability (in hotels, apartments, etc.) due to the lack of appropriate adaptation for my disability in these places, if they have been adapted at all. For this reason I can never travel. And I would like to be able to travel and go on holiday at least once a year like anybody else; in my case this would be thanks to a personal assistant. In short, I need a personal assistant to be ensured very basic and essential help for my personal autonomy, even if it were not continuous but occasionally for the times that I need to perform these activities.”

The competent public administration awards help at home and they, not the service user, decide how it is provided (even the working hours distribution is decided by the competent public administration). This is a clear intrusion of privacy; these are the comments of the service user in this regard:

“I disagree with this because I am obliged to depend on services provided by companies who specialise in this activity and I would like to have the “right” as a human being and adult to choose how and who should give me this help. I consider that and request that I should be able to choose a person that I like and trust completely, to provide me with these services in my home which are so “intimate and personal” such as my personal toilet, my food, cleaning and handling my personal effects, sometimes “very personal” effects, the time that I need this help according to my personal organisation, duties and needs, and be free to organise my schedule which is also dictated by my illness such as rest, peace and quiet, being stress-free. In short the home help work which I cannot undertake due to my limitations, should be performed by a person whom I trust and “I have chosen” to whom I can entrust the keys to my home so that they can enter and perform the service

without my having to open the door, for example to help me to get out of bed when I cannot do this alone, which has occasionally happened when I have had an injury or temporary ailment, and to enable me to rest peacefully and at ease while they perform their tasks when my illness obliges me to rest. With the services I get at present this is not possible, I am obliged to remain dependent on close family members who occasionally have to help me and therefore I can never enjoy the full personal autonomy and independent life which I desire and believe to be my right. As the person affected, I do not feel happy that I am allocated staff to help with these very intimate and personal matters “whom I do not know”. Extremely often these people are replaced by others, the time that they come to provide the service varies (depending on the needs or organisational issues of the company and their staff), and we as users have to put up with all of this”.

In relation to the provision of personal assistance, it should be highlighted that in 2012 by virtue of the amendment made by Royal Decree - Law 20/2012, of 13 July on measures to guarantee Budget stability and the promotion of competitiveness (B.O.E. 14 July), in effect since 15 July 2012, the previous regulation was improved. As requested by CERMI this provision should be available for people with all degrees of dependence (high, severe and moderate) and not, as occurs at present, only be available for degrees of high dependency. There has been progress in that the provision is no longer so restrictive, but this alone does not provide for this support to be extended and made general, which is essential for people with disabilities.

PROPOSAL FOR IMPROVEMENT

CERMI has been calling for the modification of SAAD regulation to strictly comply with the principles and mandates of the Convention. This system cannot be entirely geared towards planning the way people with disabilities live, as it has been to date, it should allow them to lead an autonomous life which does not create institutional dependency.

• Cutbacks to social policies as a consequence of the economic crisis are endangering the fundamental rights of people with disabilities.

State CERMI was constituted in a situation of emergency to deal with the adjustment measures and cutbacks which have been being enforced by the various Spanish public authorities over recent months and years, and which are damaging, if not dismantling, the welfare structures for people with disabilities and their families. The Executive Committee unanimously passed the Programme for active response and social mobilisation SOS DISABILITY on 27 September 2012.

The cutbacks are harming levels of social inclusion. The easy route to overcoming the crisis by cutting back on or ending social rights and benefits, which are still poor, unstable and discontinuous in Spain, cannot be taken. Generic cutbacks in areas such as employment, health, personal autonomy and care of dependency, or education, to name only the most relevant areas from the perspective of inclusion, have had serious

repercussions on disability support resources and devices, placing them in a very precarious situation, with doubts as to whether they will continue. Another negative factor is that new initiatives have been frozen, the political agenda for disability is now inactive, it is not progressing and this is put down to the crisis.

The situation in the autonomous regions where cutback policies commenced four or five years ago is particularly alarming; the disability sector is in serious risk of collapse. Aggressive budgetary reductions, ending long-established programmes, delays and generally defaulting on payments to associations for services outsourced from the Administrations, organisations going under due to a lack of funding, increased exclusion and poverty, etc., are a general theme throughout all the regions, with the consequent destruction of the fragile welfare system achieved over recent years for a social group which is so vulnerable in terms of their rights – namely, people with disabilities and their families.

Support and direct care services for people with disabilities and their families are at serious risk of coming to an end as a consequence of the drastic reductions in budgetary items for inclusion and social policies.

As an example, below is a reference to a specific case reported by the sister of a person with intellectual disability whose inclusion process has been seriously compromised by the abovementioned cutbacks and financial adjustments:

• Law 6/2012 of 29 June on tax, economic, social and administrative measures of the Region of Murcia reforms the copayment of services for the care of dependency due to attending a day centre, seriously violating the rights of orphans with disabilities. This requires orphans to pay large sums in copayment depending on the orphan’s pensions to which they are entitled on the death of their parents. While their parents are alive the disabled person does not have to pay anything in the way of copayment as the pensions are in the name of their father and/or mother. On the decease of their parents the pensions become the sole property of the orphan and in this very difficult and dramatic situation the regional administration applies the completely unfair copayment.An example of this is M.F.V.C., a day centre user in the Autonomous Region of Murcia who, with a degree of disability of 77%, 51 third party aid points and 49 years of age has gone from not having to pay anything (her parents being alive) to having to pay 858.77€ per month.

The situation on this occasion meant that the day centre user had to give up this service because she lacked sufficient resources, as her income had to cover her personal housing expenses and her personal assistant which enabled her to live independently during the time that she did not attend the day centre. Perversely, this amendment impeded the inclusion of this person into the community as enshrined in the Convention.

• CERMI requested the intervention of the Ombudsman to file an appeal on the grounds of unconstitutionality before the Constitutional Court against Royal Decree-Law 20/2012 on aspects of personal autonomy and care of dependency.

CERMI requested the intervention of the Ombudsman to file an appeal on the grounds of unconstitutionality before the Constitutional Court against Royal Decree-Law 20/2012, of 13 July, in relation to the amendments introduced by Law 39/2006, of 14 December, on Promoting Personal Autonomy and care for people in a situation of dependency.

CERMI particularly questioned the measures for rationalising the dependency system introduced by Royal Decree-Law 20/2012 as they brought about major cutbacks to financial benefits allocated to ensure personal autonomy and the care of people in a situation of dependency. The serious modifications introduced undermine the system of dependency itself and seriously encroach on the social and financial rights of people with disabilities established and acquired in the light of Law 39/2006, often leaving these people and their families in a very unprotected situation.

In response, the Ombudsman took a negative approach considering it inappropriate to present the required appeal on the grounds of unconstitutionality. In deciding thus, he maintained, amongst other arguments, that “the measures agreed by the regulatory reform impose sacrifices on citizens, both in terms of the obligation for everybody to sustain public expenses according to their financial capacity (Article 31.1c), and in relation to modifying expense criteria and reducing public expenditure itself. These sacrifices are all the more painful when, as in this case, they affect people in a vulnerable situation and their families. But on this point it must be recognised that Royal Decree-Law 20/2012 contains a wide range of provisions in which the burden is distributed over a wide number of citizens of very diverse collectives, so that the measures adopted which are doubtless substantial and hard for those who are affected by them, have to be put into perspective and, examined from this viewpoint, cannot be considered discriminatory or arbitrary.”

GOOD PRACTICE

• A deaf person is able to participate in a volunteer programme because of accessible training resources.

People with disabilities have the right to be included in the community in which they live and can also add to this community by actively participating in mutual aid programmes which improve the inclusion levels of other social groups in situations where they risk exclusion. However this is very often not possible because they are not considered of value to this community and are excluded due to a lack of accessibility to volunteer programmes, for example.

This happened to V.M., a person with hearing loss from Pontevedra who took part in a Red Cross volunteer programme but who had a lot of problems attending training and information courses on an equal basis to the other volunteers. Eventually, thanks to the collaboration of the Red Cross and help given by CNSE and CERMI accessibility conditions to the course were met and V.M. was able to participate in this programme which enabled him to feel included in his community.

ARTICLE 20 – Personal mobility

• Airlines are still infringing the rights of disabled passengers: Easyjet is dealing with many complaints and penalties because they implement a discriminatory policy against people with disabilities.

In this case, a passenger from La Rioja, F. G., claimed that the airline forced him to pay for two people to travel to be responsible for evacuating him in the event of an emergency.

CERMI has already condemned the abuse perpetrated by airlines in previous reports under EC Regulation 1107/06, which for “reasons of safety” allow airlines to hinder the free movement of 80 million disabled people in Europe. The airlines use this argument as an arbitrary route to avoid meeting standards of non-discrimination and equal opportunities.

The lack of awareness on the part of the airline sector with regard to the rights of passengers with disabilities also gives rise to situations which compromise the safety of these passengers.

CERMI receives continuous and numerous complaints and claims from passengers with disabilities or reduced mobility about treatment received from airlines, fundamentally low-cost airlines, which are possibly failing to meet the standards that oblige them to board and assist people with disabilities or mobility difficulties without discrimination.

As the complaints are largely against these types of companies, the State Aviation Safety Agency of the Ministry of Development was urged to investigate low-cost airlines to check that they are strictly complying with European regulations on the rights of passengers with disabilities and, if not, to set up the relevant files and, if necessary, penalise behaviours which are obviously infringing the rights of passengers.

As yet, no penalty has been imposed for this type of abuse in Spain but this same Easyjet policy has been heavily penalised in France and Switzerland. In 2012 the French courts fined the company 70,000 Euros on the grounds of discrimination for preventing three unaccompanied disabled people from boarding one of their aircraft; the court of Bobigny to the north of Paris described this behaviour as “an attack against human dignity”. The company attempted to defend itself from these accusations arguing safety reasons covered under European regulations; fortunately these arguments were not appreciated by the French Court.

The Swiss authorities via the Federal Office of Civil Aviation of the Swiss Confederation considered that the company’s policy of demanding that people with physical disabilities travel accompanied is discriminatory. This specific situation concerned an elite sportsperson, as published in the digital version of the ABC newspaper on 9 January 2012. “André Pérez, an elite sportsman who uses a wheelchair, wanted to travel to Berlin from Geneva on an Easyjet flight, but the company did not allow him to board arguing that he needed to travel with another person to assist him to leave the aircraft in the event of evacuation. Pérez argued that he could leave himself, but as he

was again refused entry, he had to ask another passenger for help, who promised to help him to leave the aircraft in the event of an emergency”.

These events, which occurred in 2009, were reported to the competent Swiss authorities who described this practice as discriminatory and forbade this type of action to take place in Switzerland. The company adjusted their policy but regrettably this decision only covers flights leaving Switzerland.

• The International Disability Alliance (IDA), a network of international and regional organisations for people with disabilities, lodged a complaint before the Spanish Consulate in Bogota regarding a disabled person who was refused a visa to attend a meeting of this international organisation.

In March of 2012 IDA voiced their displeasure regarding Mr. Salam Gómez having been refused a Visa Schengen. Mr. Salam Gómez is the Executive Director of Fundamental Colombia, National Disability Advisor, the Representative of people with psychosocial disabilities in Colombia, continental representative for Americas WNUSP, Member of the executive committee of RIADIS and RCUD Member and advisor.

As an expert in the rights of persons with disabilities, Mr. Gómez was invited by IDA to attend the meeting the Governing Body of IDA held in Athens, Greece, between the 8 and 12 of March 2012.

With Mr. Gómez’ experience in the field of disability, his presence would have significantly enhanced the meeting. However this sad circumstance, which had already happened in 2009 to another Colombian participant, happened again in 2012. These denials which have no other apparent justification, hamper debate and exchange of experiences between experts from different countries, and therefore, compromise the movement of people with disabilities in general, as well as the full and effective application of the Convention (ratified by Colombia in May 2011) as, according to IDA, this denial was due to the fact that Mr. Salam Gómez is a disabled person. The complaint filed with CERMI resulted in a letter of complaint to the Spanish authorities about the reported events.

• The poor maintenance of accessibility elements is seriously compromising people with disabilities and violating their rights.

People with disabilities frequently approach CERMI to complain about the damage to and neglect of elements which enable accessibility on an equal basis to others to public goods and services. This tends to occur relatively frequently when there is little interest in maintaining these elements after their installation. A person with reduced mobility who uses a wheelchair found himself in this situation and needed complete help to enter an aircraft.

On 22 and 23 November he took Iberia flights IB 8058 and IB 8075 departing from the airport of Granada and on both occasions the assistance service operatives did not have the appropriate and obligatory technical means to perform the operation and were obliged, at serious personal risk to the passenger and themselves, to undertake

the operation to lower and raise the passenger using a narrow wheelchair and this was done practically “up in the air”. When the passenger complained strongly the operatives acknowledged that the situation was not usual but the technical system had not been working properly for some time.

ARTICLE 21 – Freedom of expression and opinion, and access to information

• Audiovisual television programming channels are failing to fulfil minimum accessible audiovisual services required under General Law 7/2010 on Audiovisual Communication.

The Telecommunication Market Commission (CMT), as an administrative body, has assumed the functions that were initially to be those of the National Audiovisual Media Council (which in the end was not formed). Thus the Seventh Transitional Provision of Law 7/2010 provides that “until the effective constitution of the National Audiovisual Media Council its functions shall be undertaken by the competent administrative body”. One of the functions of The National Council would have been to send an annual statutory report to the Government and the Cortes Generales (Spanish parliament) on the audiovisual sector (art 47.2.c Law 7/2010). The CMT had been fulfilling this brief in previous years, and continued to do so as the National Council was not in the end created.

With this in mind, and given that the last report on the accessibility of the audiovisual sector is that of 2011, it can be stated that the television channels are failing to meet their obligations on accessibility for people with hearing disabilities, covered under Article 8 of the aforementioned Law. Thus, in accordance with the Fifth Transitional Provision, with regard to accessibility service percentages for private channels, a percentage of 45% subtitling was required for 2011, one hour of sign language and one hour of audiodescription.

Furthermore, public service channels should have attained 50% subtitling by 2011, and three hours of both sign language and audiodescription.

Examining the accessibility indicators included in the 2011 report, it can be concluded that nationally, out of the five public channels: TVE, La 2, Teledeporte and Clan TVE, are fulfilling the subtitling percentage, but CANAL 24H is not. None of the channels who have provided data (TVE, La 2 and CANAL 24H) are meeting the required sign language and audiodescription hours.

Only ten out of the 23 private companies are complying with the subtitling percentages. Eleven companies (Telecinco, La Siete, Antena 3, Antena Nova, Antena Nitro, Intereconomía TV, MTV, La 10, Veo 7, AXN and Marca TV) are not fulfilling the percentages and there is no data for the remaining two. Only seven are fulfilling the sign language hours, seven are not (Antena 3, Antena Nova, Antena Nova, Antena Nitro, MTV, Veo 7, Marca TV) and there is no data for the other nine. Finally, six are not meeting their obligation in terms of audiodescription hours (FDF, Antena 3, Antena Nova, Antena Nova, MTV and Veo 7), there is no data for ten of them, and therefore

only seven are providing this service. Regionally, the figures show that even fewer are meeting this obligation: of the 28 public service channels on which information is shown, only five are complying with the required subtitling (Canal Sur Televisión, Canal Sur 2 Andalucía, TV3, CS3+3XL, 33D); six are providing the required sign language hours, therefore eleven are failing to do so (Aragón TV, Televisión Canaria, CMT, CMT2, TV3, Canal Extremadura TV, Extremadura Televisión, 7 Región de Murcia, etb2, 9.24, Nou Dos) and there is no information for the other eleven. Only three channels are fulfilling the audiodescription requirement, the remaining seven are not doing so (Canal Sur Televisión, Canal Sur 2 Andalucía, Aragón TV, TPA, Televisión Canaria, 7 Región de Murcia, Canal 9); and there is no data on the remaining 18.

At the time of completing this report, the data for 2012 were not available.

• CERMI requested the Senado to correct their website’s accessibility deficit which “is not fully meeting legal and regulatory mandates in force in Spain, which make it compulsory for the websites of public institutions to be fully accessible”.

CERMI transferred a report drawn up by experts on the accessibility of the newly designed Spanish Senate’s website, www.senado.es, for people with disabilities and elderly people which was made public in 2012.

The report, backed by Spanish legislation, contains the findings of a study to assess the accessibility of the most representative elements of a website, allowing all users access to information on an equal basis. Although the Senate’s website had been developed to be accessible, there were found to be some obstacles, in some cases serious, which were preventing access to content and built-in functionalities.

According to the study, the Senate’s website presented accessibility problems which need to be reviewed and corrected, to ensure all citizens access to the different services and applications offered, regardless of the form of navigation used or their disability.

Some characteristics of good practice were found on the webpage: HTML tags had been incorporated (these are necessary in developing an accessible website); the page’s layout with style sheets was good and there was separation between the characteristics of presentation and content.

With regard to access problems; images with information content were found to be lacking an appropriate alternative content, CAPTCHA element, and there were decorative images without appropriate alternative content, the multimedia object had not been developed to be accessible, there were found to be errors in the structure of headers, there were links which could not be understood out of context, inaccessible PDF documents, the page headers did not specify their content, some text had insufficient colour contrast and there were absolute sizes in style sheet properties.

ARTICLE 23 – Respect for home and the family.

• Parents with intellectual disabilities are not receiving the support they need to exercise this right on an equal basis to others.

In 2012, the association for intellectual disability and FEAPS Andalusia reported a case of possible discrimination involving a newborn child having been removed by the Council of Andalusia from an intellectually disabled couple alleging that there had been “antenatal abuse”. The Council justified their decision on the grounds that the mother had not attended all her maternity checks with strict regularity; the child was taken from its parents at five days old causing irreparable damage.

FEAPS Andalusia understood that no abuse could be established as the child had been born completely healthy. Although they acknowledge that it is not advisable to miss health checks, they considered that the allegation of “abuse” was disproportionate especially when there was no evidence of illness or difficulties which would have required monitoring during delivery.For this reason the organisation considered that the action of the Council in removing custody of the child was an infringement of the rights of the couple as parents. FEAPS Andalusia upheld the need to set up a programme of intervention and support to enable the couple to enjoy parenthood. Therefore, the Administration would offer the necessary help for the minor to realise this undeniable right. CERMI have lodged a formal complaint to the Ombudsman of Andalusia about these circumstances which have occurred before in this Autonomous Region.

VIOLATION 23

• People with disabilities are at a disadvantage in the process of adoption of minors.

CERMI learned that a couple with visual disabilities had been refused adoption of two minors without their having been formally informed of the reason for this denial. They were only told verbally that the officials undertaking the psycho-social study in the adoption process had issued a certificate of suitability for the adoption of only one child, presumably because of their visual disabilities. When they verbally questioned these allegations, the couple were threatened that the adoption process would be halted.

ARTICLE 24 – Education

• No improvement has been observed in the process of including people with disabilities in schools since the Convention entered effect.

Since the Convention came into effect in Spain, CERMI has been calling for the educational inclusion process to be activated to ensure the full inclusion of children with disabilities in mainstream schools with the necessary support as mentioned in the Convention and that this right should be allowed them on an equal basis to others. However data from recent years does not show any progress towards this:

Academic year 2008-2009• Total number of pupils with special needs 138,817 – 77.8 %• Pupils with special needs attending special schools 30,819 – 22.2%• Pupils with special needs in mainstream schools 107,998

Academic year 2009 – 2010• Total number of pupils with special needs 141,677 – 78.4 %• Pupils with special needs attending special schools 30,643 – 21.6 %• Pupils with special needs in mainstream schools 111,034

Academic year 2010 – 2011• Total number of pupils with special needs 141,426 – 78.1 %• Pupils with special needs attending special schools 31,043 – 21.9 %• Pupils with special needs in mainstream schools 110, 383

Source: Ministry of Education http://www.mecd.gob.es/horizontales/estadisticas/indicadores-publicaciones-sintesis/cifras-educacion-espana.html

PROPOSAL FOR IMPROVEMENTWhen the new Government took over in spring 2012 CERMI presented the outstanding agenda on educational inclusion to the Ministry of Education:

- To review and update national and regional legislation on education to fully adapt it to the paradigm of inclusive education established by the International Convention on the Rights of Persons with Disabilities signed and ratified by Spain, ending and not permitting under any circumstances new models or structures which do not correspond to the right to educational inclusion to be created or receive investment. Until a system of education is achieved which complies with the principle of inclusion, legislation must make it mandatory that pupils with disabilities or their parents may freely choose their form of education and schooling, respecting their preferences and providing them with appropriate information, so that any reasonable accommodations required may be put in place. - To guarantee the principle of access on a regular and normal basis of pupils with disabilities to mainstream educational resources without discrimination, so that the provision of the support necessary for educational inclusion in an open educational environment is always a reality. In order for the choice of an inclusive education to be a reality, nominal or purely rhetorical statements should be abandoned in favour of mobilising investment and adequate resources. - To ensure the early identification of disability and preventive and compensatory care, and improve the processes of detection, achieving better coordination between the various entities and devices, and promoting schooling from early education as a way to compensate for inequalities.

The early detection of educational support needs, particularly those associated with disability, will start the integral care of pupils as soon as possible, guided by the principles of equal opportunities, non-discrimination, universal accessibility and design for all, which result in truly inclusive education. - Inform the entire educational community of their rights and duties, in particular pupils and their families; they need to be aware of resources, adjusted expectations, receive support and encouragement, training and advice. And the entire educational community needs to be made aware of the reality, diversity and intrinsic value of people with disabilities and the contribution they make to the community in which they live. - Incorporate principles of non-discrimination, universal accessibility and design- for- all into teaching/learning and assessment processes, into the application of teaching materials and new technologies, and into the training content and acquisition of teaching skills. - Promote appropriate qualification, specialisation and skill updating in both the initial and the continuous training of teachers and education professionals which accommodate the medical, scientific, technological and social advances which improve the personal situation of children with disabilities on a daily basis, improving coordination between professionals, guidance teams and the entire educational community, ensuring that human resources and materials are provided to ensure the principle of universal accessibility. - Ensure that schools’ educational projects include diversity care plans which are reflected in their quality indicators, and in the application of the principle of equity and normalisation in all contexts, for example, in all activities offered in schools, relating them with the school curriculum directly or transversally, in or out of school (recreation, school canteen, excursions, extended timetables, etc.). - Ensure that the Study Grants and Aid Plan is within the reach of all students with disabilities, regardless of the type and degree of their disability - Propose that the network of associative movements representing disability is considered, participates and is made jointly responsible in the next governance of the education system; it should be considered another key player in the education system.

• On 10 July 2012 the European Commission published the Report on “Education and Disability/Special Needs – Policies and practice in education, training and employment for students with disabilities and special educational needs in the EU” prepared for the European Commission by the NESSE network of experts. The report highlights that, despite the commitment made by member States to promote inclusive education, children with special educational needs and adults continue to be disadvantaged.

In this context, the report highlights that many of these students are studying in separate centres and those that are in mainstream education tend not to receive the appropriate support. The report calls for member States to make more of an effort to develop inclusive education systems and to eliminate the barriers faced by vulnerable groups in terms of educational participation and achievement, training and employment.

The report contains a series of recommendations aimed at promoting the educational inclusion of all students with disabilities:

• Although it is difficult to include pupils with severe disabilities, who might be better attended in separate centres, into the mainstream education system, it is becoming increasingly clear that a great many students who have disabilities or special educational needs could be included in mainstream education and that inclusive education is good for all students.

• Although it is essential to make progress towards more inclusive education systems, the training and continuous professional development of teaching staff does not always take inclusion needs into account.

• In addition to regular teachers, support teachers and monitors play an essential role towards ensuring that inclusion works.

• In some European countries, study plans are uniform and do not accept changes, which makes it difficult to integrate children with disabilities. The practice of repeating academic years also hinders integration.

• People with disabilities are less likely to go on to higher education than those who do not have disabilities.

• People with disabilities who obtain higher qualifications are still at a disadvantage in the labour market, although they have far more possibilities of being hired than less qualified disabled people.

• There is no comparative data between European countries on the number of students with disabilities in higher education, or on deficits and results achieved in this type of education.

• There is no updated, reliable information on the number of people with disabilities working in the different European countries.

• Disability benefits help mitigate poverty and social exclusion, but they might be reduced as a result of the current cutbacks in public spending throughout Europe.

• Flexicurity plans are helpful because they allow people with disabilities to work part time without losing all their benefits.

• There is considerable convergence in policies on disability and employment throughout Europe and the majority of countries are adopting similar support measures. Nevertheless, the efficacy of employment support and professional retraining programmes varies as to how they include people with disabilities in the labour market, or aid towards maintaining a person in employment who has become disabled as a result of an accident at work.

• In turn, the Annual Report of the Ombudsman also highlights some of these aspects referring to the education cuts which are affecting support aimed at pupils with special educational needs (such as sign language interpreters) and the application of strict ratios which end support. All of these measures contravene the Convention.

They also point out how Law 26/2011, of 1 August, on legislative adaptation to the International Convention on the Rights of Persons with Disabilities did not adapt educational legislation and highlights the fact that our law provides for the schooling of some children in special education centres. This is in contravention of the Convention.

VIOLATION 24

• A school refused to allow a child with epilepsy to undertake out- of- school activities. A complaint was received from the father of a child of four with a disability of 71%. The child, who had not received discriminatory treatment during early education started to have problems when he entered primary school, because the school did not allow him to undertake out-of- school activities with his schoolmates because of his disability. He would have been perfectly capable of performing these activities if reasonable accommodations had been made. He was not allowed to participate on two occasions; a farm visit and then an activity involving riding on a play train travelling around the school block. Neither of the two activities required physical qualifications involving any sort of adaptation beyond the school’s usual obligation “in loco parentis” during school hours.

This attitude on the part of the school is a clear violation of Article 24 of the Convention, by virtue of which States Parties are committed to ensuring an education system which is inclusive at all levels. Thus, the school cannot simply refuse a child to take part in out-of-school activities, they have to provide the appropriate adaptations if they are needed. Out- of- school activities form part of the educational process and facilitate a greater level of social inclusion for pupils. Excluding pupils from these activities is a major violation of their rights.

• Problems with the schooling of a child due to a lack of support. The parents of a child with a disability requested the Ministry of Education of the Canary Islands to provide the support needed to include their son in mainstream education. However the administration left it until a few days into the academic year to inform them that there would only be staff available to attend to their child for fewer hours than those allocated to children without disabilities and that it could not be guaranteed that he would receive appropriate care.

• E-learning courses are not accessible to people with disabilities. This form of learning is increasingly popular and is causing a clear digital divide for people with disabilities. This medium offers major training opportunities for people with disabilities yet does not meet appropriate accessibility conditions even when it takes the form of public training or publicly- funded training.

This happened to a resident of Valladolid who registered at the Valladolid Official Language School on the That’s English course, which offered a distance learning platform which they advertised on their website.

The course format was what motivated him to register on the course since, with his restricted mobility, the possibility of obtaining the course contents from their digital platform in principle ensured him full accessibility to be able to undertake the course on an equal basis to others.

However, six months after the start of the course only 20% of the course content had been uploaded - in other words, two units out of the total of eleven making up each module. This is not only a failure to comply with the conditions of the That’s English course that this person had signed up to, but is also a serious violation of his right to equal opportunities as, in January, five months after starting the course, there was an examination for which it was difficult to him to prepare. No alternative was provided to enable him to continue the course after the numerous complaints presented to the course managers. This caused serious harm.

The right of persons with disabilities to non-discrimination includes the adoption of accessibility measures and reasonable accommodations and a failure to do so contravenes the conditions of equality which would have allowed this person to complete this course.

The That’s English platform is managed by the Ministry of Education. It is common to all Official Language Schools and is therefore a nationwide problem. In accordance with Law 51/2003, of 2 December, the public services are obliged to respect the right to equal opportunities (Article 10. bis), especially when there is a commitment to accessibility in the contract conditions, yet the response of the Ministry of Education to this person referred to a lack of availability without taking into account the damage caused in this case. As mentioned, this circumstance violates the right to equality of opportunity, in particular the right to an education.

ARTICLE 25 – Health

• A couple with cerebral palsy received no support in a public hospital in filling in the forms they were required to complete.

After constant difficulties raised by the hospital’s administrative staff, the couple approached CERMI for information on their rights, in particular whether they could ask for help from the hospital staff in filling in forms. Accessibility measures, including support and reasonable accommodations, allow people with disabilities access to public services on an equal basis to others. In situations such as the above, hospital management must have a support protocol in place in this context. A failure to provide staff with appropriate training on the rights of people with disabilities results in a lack of awareness and hampers equal access to public services.

• The legal guardian of a person with an intellectual disability who had been urgently transferred to hospital in the early hours of the morning complained about the misguided zeal on the part of hospital workers who cited “the internal rules of the hospital” to avoid any flexibility in providing support services. The disabled person was placed in an ambulance to transport him from the centre, which was seventy kilometres from the hospital, without anybody to accompany him, even though the driver asked for a companion for the patient who has severe communication difficulties; this was denied on the grounds of internal rules. Eventually it was the ambulance driver who took the person to the hospital where his guardian was waiting for him.

The Administration of the Community of Madrid, where this took place, establishes in its technical specifications for contracting public health care service, within the service contract system, for adults with intellectual disabilities and a high level of dependency living in a special centre, that: «Other services.Where necessary, or in cases of emergency, the Centre shall transfer and accompany residents to hospitals, using the appropriate means and resources of the Health System, if necessary seeking the collaboration of family members or responsible parties …» This document is compulsory under the service contract system and therefore the home must comply with it or run the risk of losing the agreement. CERMI suggested the possibility of filing an administrative complaint about what happened to the corresponding administration.

ARTICLE 27 – Work and employment

VIOLATION 27

• A lack of awareness is obstructing the access of a person with a hearing disability to selective entry tests for employment in the Real Casa de la Moneda (Spanish Mint), this organisation answers to the Ministry of Finance and Public Administration. This case involves a person with multiple disabilities and a hearing disability of 68%, who applied for a civil service examination to become a Production Assistant at the mint.

When registering, the person made it clear that he had and has a disability, having consulted the databases and finding that the exam of two hours’ duration involved multiple choice questions and answers, he did not add any adaptation, as it did not appear necessary.

When he arrived to sit the examination he mentioned his disability and asked for the additional information given prior to the exam to be written on a piece of paper. The person he asked indicated a place outside the examination room but did not write this down for him, and therefore he did not know what he meant by this. A few minutes were left before the start of the exam and he decided to stay where he was. The Board addressed the people sitting the exams, he did not understand, nobody wrote what

was being said down for him and half an hour later his and the other candidates’ exam papers were removed, he was left confused as nobody had given him the information in an accessible format. A mistake had been made, apparently due to the lack of accessibility of the information given to the candidates at the time of the examination.

• The Ministry for Justice agrees to adapt a civil service examination for the position of Procedural Manager for a person with visual disabilities.

V. F. had already suffered discrimination in the entrance tests for a civil service job in 2010, when she was not allowed to have the questions read to her or given to her in accessible format, claiming that this might compromise the examination “she might claim that the questions had been read to her incorrectly”. In 2010 she had to leave the exam without answering a single question as the format was completely unintelligible to her.

In 2012, V. F. asked the civil examination Board whether she could sit the exam using an accessible computer application for visually impaired people or, alternatively, whether she could be read the questions aloud. The Board refused initially and subsequently to allow this, then, after she reported this circumstance and CERMI had assessed it as seriously discriminatory, a spokesperson from the examination Board contacted her to confirm that she would be read the questions and that her answers would be transcribed.

• CERMI reported the damage caused to people with borderline intelligence by the inactivity on the part of the Administration towards including them into the labour market to the Specialist Permanent Bureau of the National Disability Council and the Ombudsman.

Law 26/2011, of 1 August, on legislative adaptation to the International Convention on the Rights of Persons with Disabilities establishes in its sixth additional Provision that “The Government, in the framework of the Action Strategy for the Employment of Persons with Disabilities, within a period of twelve months, shall present positive action measures aimed at promoting the access to employment of persons with limited intellectual capacity, whose situation has been officially recognised even though they do not reach a degree of disability of 33 percent. According to regulations the Government shall determine the minimum degree of disability for this application to operate.”

Nevertheless, and even though more than a year has passed since this Law came into effect, the Government has made no steps towards promoting the regulation of this precept which it is legally required to do. In this context, CERMI sent a proposal to the Executive for the appropriate regulation of this legal mandate at the beginning of 2012. They have not received any reply from the competent ministries.

GOOD PRACTICE

Thanks to the mediation of the Ombudsman, the Official School of Languages of Carabanchel, Madrid, made major reasonable accommodation for a teacher at the

school with a visual disability. The school chose to provide a support teacher for the teacher who had several classes of a size which had not been adapted, in other words, of the same number as a teacher without a disability. In order for her to be able to carry out her job satisfactorily the Inspector from the Ministry of Education and Employment of the Community of Madrid sent a favourable report so that she was provided a support person to cover all of her teaching load. Her being provided this additional resource was as a consequence of the mediation of the Ombudsman.

ARTICLE 29 – Participation in political and public life

• According to data from the Public Prosecutor, almost 80,000 people with disabilities were not able to exercise their right to vote in the general elections of 2011.

These data were requested by the Public Prosecutor from the Central Electoral Commission and reveal the following:- By gender:Total 79,398Women 42,475Men 36,923

- By age:18 to 30 10,119

31 to 64 38,329

65 to 109 30,950

PROPOSAL FOR IMPROVEMENT

CERMI has asked the Government and the legislature to amend Spanish legislation which allows the right to vote to be removed on the grounds of disability.

The Spanish state guaranteed the right of equal treatment and non-discrimination for all citizens with disabilities. This is laid down by the Constitution in Article 14 which proclaims the equality of all Spanish people before the law. The Convention came into force in Spain in May 2008, the right to equality before the law is covered in Article 12. The stated purpose of this international treaty is to promote, protect, and ensure the full exercise in conditions of equality of all human rights and fundamental liberties for all persons with disabilities, as established in its Article 1. To that end, guaranteeing the

full and effective participation of people with disabilities in society is essential in honouring the commitments which Spain has signed up to on an international level. In this regard, exercising the right to vote on an equal basis to others is the greatest expression of the political participation of the members of a democratic society. This is covered under article 29 of the Treaty, which urges the State to guarantee the right to vote and other forms of political and public participation, of all persons with disabilities on an equal basis to others. Therefore current regulation on the right to vote in Spain is in serious conflict with the principle of equality before the law enshrined in our Constitution as provided by Organic Law 5/1985, of 19 June, on the General Electoral System, in its third Article section 1:

“1. The following do not have the right to vote:

• Those who have been declared incapable by firm legal ruling; as long as this ruling expressly declares incapacity to exercise the right to vote.

• People who are held in psychiatric hospitals under legal authorisation, during the period of their confinement as long as the judge has expressly declared the incapacity to exercise the right to vote in the authorisation.”

With regard to this exclusion from a fundamental right, the UN Committee on the rights of persons with disabilities, passed the following recommendation in their examination of Spain in accordance with article 35 of the Convention on the right to participation in political and public life as covered under article 29 of the Treaty in the concluding observations of their 62nd session held on 23 September 2011:

“47. The Committee is concerned that the right to vote of persons with intellectual or psycho-social disabilities can be restricted if the interested person has been deprived of their legal capacity or has been confined in an institution. It is further concerned that the deprivation of this right appears to be the rule and not the exception. The Committee laments the lack of information on how stringent the rules are regarding evidence, on the reasons required and on the criteria applied by judges to deprive people of their right to vote. The Committee observes with concern the number of people with disability to whom the right to vote has been denied.48. The Committee recommends that all the pertinent legislation be revised to ensure that all persons with disabilities, regardless of their deficit, their legal condition or their place of residence, have the right to vote and participate in public life on an equal basis to others. The Committee requests the State party to amend Article 3 of Organic Law Nº 5/1985, which authorises judges to deny the right to vote by virtue of decisions adopted for each particular case. It should be amended to ensure that all persons with disabilities have the right to vote. Furthermore, it is recommended that all persons with disabilities who have been elected to hold public office have all the necessary assistance at their disposal, including personal assistants.”

Regulation of the right to vote cannot presuppose any limit of the capacity to exercise this right based on the existence of a disability. Limiting the exercise of a fundamental right is completely artificial as these rights are advocated as universal and in this case our anti-discriminatory law classes this limitation as undesirable.

The intervention of the Legislator and the State should be restricted to taking the

necessary measures to ensure the exercise of rights on an equal opportunities basis but they cannot undermine its essential content and thus break the law since, in a democratic State of Law, both are completely subject in this regard to the fundamental rights established in both the Constitution and the Convention. And this violation of the right to vote is precisely the sort of paradox of the democratic State which must be addressed urgently as it is a serious assault against the dignity of people with disabilities. The result of exercising this right must be fully respected as, in addition to being of equal value, it is never illegal, but rather marks respect for the diversity of people who form an undisputable part of society, a society which is rightfully proud of the right to choose its rulers.

ARTICLE 30 – Participation in cultural life, recreation, leisure and sport

• People with disabilities are banned from communal swimming pools. Owners’ associations can be the source of serious exclusions of people with disabilities. There are often arguments about inaccessible communal elements which are harmful to community living and undermine the rights of neighbours with disabilities.

CERMI received at least two complaints about the use of communal swimming pools in 2012:

• In the first case, a seventeen-year-old was not allowed into the communal swimming pool which under the rules was only for use by children under six. However, due to the young woman’s disability it was more appropriate for her safety to use the “children’s pool”. In this case the right to recreation meant that the rule needed to be relaxed, as a reasonable accommodation, for the girl to enjoy the elements of owners’ association property on an equal basis to others even though she was not of the age artificially established in the rule.

• The second case occurred in a residential summer home. A man using morphine patches due to his illness was not allowed to use the swimming pool because it might contaminate the water. The groundless refusal to allow him to use the swimming pool could constitute a violation of his right to participate in cultural life, recreation, leisure and sport which is expressly covered in Article 30 of the Convention. There appeared to be no medical contra-indications in this case.

• On the occasion of World Theatre Day, celebrated on Tuesday 27 March, CERMI reported the general inaccessibility of theatres and entertainment venues, hampering or preventing the regular and normalised access of people with disabilities to this type of cultural event.

There is no reliable data on Spanish theatres in terms of accessibility, but there are a great many complaints from people with disabilities who are unable to attend the theatre because of barriers in entertainment venues.Accessibility problems are architectural and involve communication barriers. Theatres which are inaccessible for people with mobility difficulties, a lack of reserved places in

the stalls, ticket office or telematic sales which present enormous obstacles etc. People with sensory disabilities also have serious difficulties. There are still very few theatres in Spain with regular and permanent subtitling or audio description systems and therefore people with hearing and visual disabilities cannot fully enjoy their productions.

PROPOSAL FOR IMPROVEMENT To combat this highly discriminatory situation, CERMI calls for the Ministry of Culture to implement an Accessibility Plan for Theatre Venues. This should be preceded by a thorough audit of the situation of Spanish theatres from the perspective of universal accessibility. Likewise, they call for all national theatres, managed by the Ministry, to adopt specific accessibility plans urgently to solve the ongoing problems with barriers. Furthermore, the proposal requires that all help from cultural administrations towards the promotion of theatrical activities should be designed to ensure that promoters, both private and public, promote accessibility initiatives. Only thus can we make progress in ensuring inclusive entertainment venues, areas and environments which hold no restrictions for a large part of society.

ARTICLE 31 – Statistics and data collection

GOOD PRACTICE

• Disability is highlighted as a cross-cutting issue in the chapter on “Attention to new and emerging areas of information” of the new National Statistics Plan approved in 2012.

There is ever greater demand for information on interrelated and interdependent information, not only from users, but also from the public authorities to promote informed public policies. In the main, these phenomena require horizontal treatment, as it is not sufficient to study them in isolation. The social sphere covers disability, the gender perspective, poverty and social inclusion, population ageing, childhood, the migrating population and other important aspects. The economic sphere covers phenomena such as globalisation, sustainable development or the environmental dimension, amongst others.

Up to eleven statistical operations with an impact on disability have been included in the new Statistical Plan. The principal novelty is the project to undertake a Statistical Evaluation of the Salary of Persons with Disabilities which will cast light on the degree of salary discrimination encountered by people with disabilities. This greater presence of disability in official statistics operations is due to the pressure and influence of the associative movement represented by CERMI. The eleven statistical operations are

detailed below:

• 6411 Statistics on the Employment of Persons with Disabilities, Purposes: To discover the situation of people with disabilities and their integration into the labour market. Institutions that intervene: INE (National Institute of Statistics), Instituto de Mayores y Servicios Sociales (Institute for the Elderly and Social Services) (IMSERSO), Comité Español de Representantes de Personas con Discapacidad (CERMI), Fundación ONCE, D. G. de Políticas de Apoyo a la Discapacidad (D.G. of support policies for disability) (MSSI), INSS (National Social Security Institute), Tesorería General de la Seguridad Social (General Treasury of the Social Security). General Description (principal variables): Relationship with the activity of the population who have requested an assessment of their degree of disability. Age, gender, type of disability, degree of disability, type of household. Collective: People resident in family homes who have requested an assessment of their degree of disability. Budgetary credits necessary for its finance in the four year period 2013-2016: 562.79 thousand Euros.

• 6412 Statistics on the Salary of Persons with Disabilities (draft) Purposes: To analyse the gross annual earnings of workers with disabilities in comparison to workers without disabilities. Institutions that intervene: INE (National Institute of Statistics), Instituto de Mayores y Servicios Sociales (Institute for the Elderly and Social Services) (IMSERSO), Comité Español de Representantes de Personas con Discapacidad (CERMI), Fundación ONCE, D. G. de Políticas de Apoyo a la Discapacidad (D.G. of support policies for the disability) (MSSI). General description (principal variables): Gross earnings. Disability, gender, age etc. Collective: Salaried workers. Budgetary credits necessary for its finance in the four year period 2013-2016: 48.93 thousand Euros.

• 6740 Survey on Social Integration and Health. Purposes: To investigate the interaction of health condition, limitation of activity and social integration as a causative factor of disability. Institutions that intervene: INE (National Institute of Statistics). General Description (principal variable): Health condition, chronic health problems, limited performance, limitations to the activities of basic daily living (self-care and domestic living), limited social participation and integration, availability of aid or personal assistance. Core social variables: gender, age, type of household, level of study, marital status, relation to activity, occupation, etc. by sample. Collective: Households and physical persons. Budgetary credits necessary for its finance in the four year period 2013-2016: 358.67 thousand Euros.

• 6742 Survey on Disability, Personal Autonomy and Situations of Dependency (Its content is not developed in this Plan. This statistic has already been completed in the past).

• 6778 Statistics on Non-contributory Benefits. Purposes: Obtaining and disseminating data concerning beneficiaries of non-contributory pensions from the Social Security, established under Law 26/1990, of 20 December, and beneficiaries of the benefits covered in Law 13/1982, of 7 April, on the social integration of people with disabilities (Royal Decree 383/84 of 1 February). Institutions that intervene: MSSI, the Ministries/Departments with competence in this area of all the autonomous regions. General description (principal variables): Beneficiaries and amounts, age, gender, type of grant or benefit, type of disability (Law 13/1982, of 7 April). Non-contributory pensions and corresponding amounts, pension class, age, gender, number of cohabitants, and degree of disability (Law 26/1990, of 20 December). Collective: Beneficiaries of non-contributory pensions, beneficiaries of aid. Budgetary credits necessary for its finance in the four year period 2013-2016: 144.61 thousands of Euros.

• 6781 Statistics of Family Benefits. Purposes: Obtaining and disseminating data on beneficiaries and reasons for family benefit per dependent child and other single payment family benefits. Institutions that intervene: MESS. General Description (principal variables): Beneficiaries, reasons, amounts. Degree of disability and age groups. Collective: Beneficiaries and reasons for the benefit. Budgetary credits necessary for its finance in the four year period 2013-2016: 161.71 thousand Euros. 6782.

• 6782 Statistics on Beneficiaries of Official Recognition as Large Families.  Purposes: Obtaining and disseminating data in relation to the different categories and composition of large families in Spain which are classified or recognised as such. Institutions that intervene: MSSI, Ministries/Departments with competence in this area of all the autonomous regions. General description (principal variables): New official recognition renewed and in effect, awarded to large families. Categories established under legislation, number of children with and without disabilities, type of family. Collective: Officially recognised large families. Budgetary credits necessary for its finance in the four year period 2013-2016: 164.38 thousands of Euros.

• 6785 Statistics on Social Aid to Women Victims of Gender-based Violence. Purposes: Obtaining and disseminating the results of social aid to women victims of gender-based violence covered under Article 27 of Organic Law 1/2004, of 28 December. Institutions that intervene: MSSI, the Ministries/Departments with competence in this area of all the autonomous regions. General description (principal variables): Women claiming aid and beneficiaries. Age, nationality, reasons for denial, disability and degree, family responsibilities and amount received. Collective: Women who are claiming and are beneficiaries of social aid under Article 27. Budgetary credits necessary for its finance in the four year period 2013-2016: 41.66 thousands of Euros.

• 6912 Macro-survey on Violence against Women. Purposes: To identify and quantify women subjected to gender-based violence and its incidence in terms of the socio-demographic characteristics of victims and aggressors. Institutions that intervene: MSSI. General description (principal variables): Violence reported once in their lifetime, violence declared in the past year. Family and work situation, educational level, religious beliefs, ideological self-placement, level of household income, nationality of victims, disability. By sample. Collective: Women over eighteen years of age resident in Spain. Budgetary credits necessary for its finance in the four year period 2013-2016: 97.75 thousands of Euros.

• 6514 Statistics on Associations. Purposes: knowledge of the associative movement in Spain on a national level and associations declared as public utilities. Institutions that intervene: MINT (Ministry of Interior). General Description (principal variables): Registration or dissolution, declaration as public utility, inclusion in international organisations, social purposes. Collective: registered associations. Budgetary credits necessary for its finance in the four year period 2013-2016: 20.41 thousands of Euros.

• 6784 Statistic on Benefits for the System of Autonomy and Care of Dependency (SAAD). Purposes: Obtaining and disseminating data relating to beneficiaries and benefits provided by the System for Autonomy and Care of Dependency, deriving from Law 39/2006, of 14 December, on the promotion of personal autonomy and the care of persons in a situation of dependency. Institutions that intervene: MSSI, the Ministries/Departments with competence in this area of all the autonomous regions. General description (principal variables): Decisions on degree, beneficiaries with the right to benefit, beneficiaries with recognised benefits. Type of service (prevention of dependency and promotion of personal autonomy, residential care, day and night centres, home help, telecare); type of economic benefit (linked to the service, care in the family environment, personal assistance). Collective: Beneficiaries under Law 39/2006, of 14 December. Budgetary credits necessary for its finance in the four year period 2013-2016: 187.96 thousands of Euros.

Article 32. International Co-operation

• People with disabilities are “in practice, invisible” in international cooperation development policies, according to an extract from the ‘Study on the situation of disability in the Spanish Policy for International Development Cooperation’, completed by CERMI and promoted and financed by AECID (Spanish Agency for International Development Cooperation).

In this context, it is calculated that Spanish co-operation devotes 0.76% of its bilateral funds to disability programmes and that these funds are distributed in a scattered

fashion both geographically and per sector.

The study highlights the need for a strategy to be approved to improve the impact of cooperation policies in relation to people with disabilities. More than a thousand million people in the world live with disability (15% of the population) and of this number, 80% live in poor countries, namely, more than 800 million people, according to the latest data provided by the World Health Organisation (WHO 2011).

Among the main recommendations of the report was that a procedure should be established for cooperation in developing a Master Plan, taking people with disabilities into account and reflecting their claims and demands in the actions completed in Spanish cooperation.

It was also recommended that a focal point specifically for disability be formed, devoted to mainstreaming disability throughout the cooperation work so that it influences all working documents created. Spain is being stricter in the application of its national policies in matters relating to disability than in its development cooperation policy; for example, no more resources are being provided for the construction of special schools for people with disabilities on Spanish territory, but they are for international cooperation.

As far as disability is concerned, development aid policies not only need more funds, they also need more efficient strategic planning which is more consistent with the UN Convention and which takes the organisations of people with disabilities into account.

Following Spain’s ratification of the UN Convention, the International Cooperation Law was amended to included the “necessity” that people with disabilities should form part of the sectorial priorities of Spanish Cooperation and furthermore, that the mechanisms and instruments of cooperation should be accessible to and inclusive of people with disabilities.

III. STATISTICAL ANALYSIS OF THE ENQUIRIES RECIEVED BY STATE CERMI’S LEGAL ADVICE DEPARTMENT IN THE COURSE OF 2012

I.- REPORT ON THE ENQUIRIES MADE TO STATE CERMI’S LEGAL ADVICE DEPARTMENT AND RESOLVED IN 2012

State CERMI’s legal advice department received a total of 317 enquiries in the course of 2012: 111 fewer enquiries than in 2011.

As in other years, those who used CERMI’s legal guidance and advice service were people with disabilities and their families, disability associative movement organisations, the majority directly or indirectly belonging to CERMI, public administrations, particularly of the autonomous regions and private companies.

Of the total number of enquiries, 65 were processed as possible violations of fundamental rights, the remainder, a total of 252 were requests for information where discriminatory action had not yet taken place. In the latter case, service users were generally enquiring as to their rights to prevent them from being violated.

The enquiries distributed by gender show the following: 59.94 percent of the enquiries came from men; ten of the 190 enquiries affected boys and girls. 36.91 percent of the enquiries came from women and a total of three of the 117 enquiries concerned girls. As has generally been the case, slightly fewer women approach CERMI’s guidance service than men, and this year’s figures were down on those of 2011 by almost five percent. A total of 1.58 enquiries were in relation to issues affecting both men and women. The figure below shows this data in graph form.

Hombres: MenNiños: BoysMujeres: WomenNiñas: GirlsHombre/Mujer: Man/WomanNiño/Niña. Boy/Girl

• Out of the total service users, 104 did not identify their type of disability, the other 213 queries can be classified in accordance to the type of disability declared by the user as follows:

Enquiries made by people with the following disabilities:

• Intellectual: 15• Mental/psychosocial illness: 17• Autistic spectrum disorders: 7• Cerebral palsy: 3• Brain damage: 9• Hearing: 17• Visual: 26• Language: 1• Visceral: 4• Osteoarticular/physical: 98• Rare disease: 3• Other: 13

• Enquiries made during this time were broken down into the following subject areas:

• Criminal: 1 enquiry. 0.32 percent of the total. 3 were recorded in this area in 2011, which was the equivalent percentage of the total.

• Administrative: 62 enquiries. 19.56 percent of the total. 106 were recorded in this area in 2011, which was 25 percent.

• Labour: 53 enquiries. 16.72 percent of the total. 60 were recorded in 2011, which was 11 percent.

• Social Security: 96 enquiries. 30.28 percent of the total. 114 were recorded n this area in 2011 which was 26 percent.

• Tax: 7 enquiries. 2.21 percent of the total. 34 were recorded in 2011 in this area equivalent to 8 percent.

• Liondau/Convention: 46 enquiries. 14.51 percent of the total. 85 were recorded in 2011 in this are equivalent to 20 percent of the total enquiries.

• Civil: 18 enquiries. 5.68 percent of the total. 43 were recorded in 2011 in this area, 11 percent of the total.

• Commercial: 6 enquiries. 1.89 percent of the total. No enquiries were recorded in this area in 2011.

Below is the graph showing this information.

Penal : CriminalAdministrativo :AdministrativeLaboral: LabourSeguridad Social : Social SecurityFiscal: TaxLiondau/Convención: Liondau/ConventionMercantil: CommercialOtros: Other

• The areas or issues about which there were repeated enquiries and/or which should be particularly highlighted are as follows:

• Physical accessibility: 3• Access to goods and services: 13• Access to justice: 7• Personal autonomy and care of dependency: 11• Tax benefits: 7

• Communications: 1• Compulsory education: 9• Non-compulsory education: 9• Employment: 51• Public employment: 24• Family: 8• Degree of disability: 7• Modification of capacity (“legal incapacitation”): 2• Protected assets: 1• Physical and moral integrity: 2• Soc/econom. benefits: 99• Health: 10• Insurance: 4• Transport: 11• Housing: 17• Support products and technologies: 2• Others: 17

Below is the graph showing this data.

OTROS: OTHERPRODUCTOS Y TECNOLOGIAS DE APOYO: SUPPORT PRODUCTS AND TECHNOLOGIESVIVIENDA: HOUSINGSECUROS: INSURANCESANIDAD: HEALTHSOC/ECO PRESTACIONES : SOCIAL/FINANCIAL BENEFITSINTEGRIDAD FÍSICA Y MORAL: PHYSICAL AND MORAL INTEGRITYPATRIMONIO PROTEGIDO: PROTECTED ASSETSMODIFICACIÓN DE LA CAPACIDAD DE OBRAR: MODIFICATION OF LEGAL CAPACITYGRADO DISCAPACIDAD : DEGREE OF DISABILITYFAMILIA: FAMILYEMPLEO PÚBLICO: PUBLIC EMPLOYMENT (CIVIL SERVICE)EDUCACIÓN NO OBLIGATORIA : NON COMPULSORY EDUCATIONEDUCACIÓN OBLIGATORIA : COMPULSORY EDUCATIONCOMMUNICACIONES: COMMUNICATIONSBENEFICIOS FISCALES : TAX BENEFITSAP Y DEPENDENCIA : PERSONAL AUTONOMY AND DEPENDENCYACCESO A LA JUSTICIA: ACCESS TO JUSTICEACCESO A BIENES Y SERVICIOS : ACCESS TO GOODS AND SERVICESACCESIBILIDAD FÍSICA : PHYSICAL ACCESSIBILITY

• The distribution per Autonomous Region of enquiries giving details of the region is as follows:

• Andalusia: 25• Aragon: 1

• Asturias: 3• Canary Islands: 8• Cantabria: 1• Castile-La Mancha: 10• Castile and Leon: 17• Community of Madrid: 84• Valencian Community: 19• Extremadura: 7• Galicia: 6• Balearic Islands: 5• La Rioja: 3• Melilla: 1• Region of Murcia: 6• Catalonia: 18• Navarre: 1• Basque Country: 7• Andorra: 1

Analysis of enquiries according to the rights covered in the Convention:

• Equality and non-discrimination (5): 1• Accessibility (9): 1• Equal recognition as a person before the law (12): 3• Access to justice (13): 6• Liberty and security of the person (14): 1• Protecting the integrity of the person (17): 2• Liberty of movement and nationality (18): 1• Living independently and being included in the community (19): 27• Personal mobility (20): 10• Freedom of expression and opinion, and access to information (21): 4• Respect for home and the family (23): 8• Education (24): 16• Health (25): 10• Habilitation and rehabilitation (26): 1• Work and employment (27): 56• Adequate standard of living and social protection (28): 91• Participation in political and public life (29): 2• Participation in cultural life, recreation, leisure and sport (30): 5

Participación en la vida cultural, las actividades.. .: Participation in cultural life, recreation …

Participación en la vida política y pública : Participation in political and public lifeNivel de vida adecuado y protección social: Adequate standard of living and social protectionTrabajo y empleo: Work and employmentHabilitación y rehabilitación: Habilitation and rehabilitationSalud: HealthEducación : EducationRespeto del hogar y de la familia: Respect for home and the familyLibertad de expresión y de opinión y acceso a…: Freedom of expression and opinion, and access to informationMovilidad personal : Personal mobilityDerecho a vivir de forma independiente y a ser: Right to living independently and being included in the communityLibertad de desplazamiento y nacionalidad: Liberty of movement and nationalityProtección de la integridad personal: Protecting the integrity of the personLibertad y seguridad de la persona: Protecting the integrity of the personAcceso a la justicia: Access to justiceIgual reconocimiento como persona ante la ...: Equal recognition as a person before the lawAccesibilidad: AccessibilityIgualdad y no discriminación: Equality and non-discrimination Table showing the distribution of each right claimed per gender and boy/girl criteria:

CRPD ARTICLE

Man Woman

M and W

Boy Girl Minors TOTAL

Equality and non-discrimination (5)

1 0 0 0 0 0 1

Accessibility (9) 1 0 0 0 0 0 1Equal recognition as a person before the law (12)

1 2 0 0 0 0 3

Access to justice (13) 5 1 0 0 0 0 6Liberty and security of the person (14)

0 1 0 0 0 0 1

Protecting personal integrity (17)

0 2 0 0 0 0 2

Liberty of movement and nationality (18)

0 1 0 0 0 0 1

Living independently and being included in the community (19)

16 9 0 0 1 1 27

Personal mobility (20) 2 8 0 0 0 0 10Freedom of expression and opinion, and access to information (21)

2 2 0 0 0 0 4

Respect for home and 2 4 2 0 0 0 8

the family (23)Education (24) 3 5 0 7 1 0 16Health (25) 6 3 0 1 0 0 10Habilitation and rehabilitation (26)

0 1 0 0 0 0 1

Work and employment (27)

34 20 1 1 0 0 56

Adequate standard of living and social protection (28)

60 30 0 0 0 0 91

Participation in political and public life (29)

1 1 0 0 0 0 2

Participation in cultural life, recreation, leisure and sport (30)

3 1 0 0 1 0 5

The figure below shows this data in graph form.

Hombre: ManNiño: BoyMujer: WomanNiña: GirlH y M: Man and WomanMenores: Children The following results were obtained for enquiries on accessibility:

• Yes: 52• No: 241• Reasonable accommodations: 18

Accesibilidad: AccessibilityAjustes razonables: reasonable accommodationsSí – Yes

CONCLUSIONS.-

FIRST.- The number of enquiries have significantly dropped by 111.

SECOND.- The number of files processed as possible violations of rights has remained constant compared to the previous year and make up 20 percent of the enquiries.

THIRD.- There are still fewer women approaching our services than men, although there are more women than men in the population with disabilities.

FOURTH. – It is people with physical disabilities who seek this service most frequently, identifying their disability. More enquiries are received by State CERMI from people from the autonomous regions of Madrid, Andalusia and Valencia. There is also a great deal of collaboration between the CERMIS of these autonomous regions and State CERMI in answering these enquiries, which enables good coordination with the organisations of these regions in the defence of human rights.

FIFTH.- The following can be highlighted as recurring themes, in terms of complaints and disputes of concern to people with disabilities and their families:

• There were 112 enquiries regarding social and economic benefits, principally in relation to employment and retirement.

• The percentage of issues raised on the subject of employment has slightly increased at 24 percent of the total enquiries compared to 22 percent in 2011. The most controversial issues are still the adaptation of entry tests and jobs. There are also many enquiries about the incentives to hire people with disabilities and for the first time in 2012, there were several enquiries about dismissal procedures and modifications to recruitment conditions.

• In the area of education, for the first time enquiries have not been restricted to public education; several complaints were received in 2012 about possible situations of discrimination in private and subsidised schools.

• There were many enquiries on the right to live independently and be included in the community and others in relation to autonomous living, totalling 58. They included questions concerning the adaptation of housing (17), access to goods and services on an equal basis to others (13), the recognition and provision of aid towards promoting autonomy (27) and mobility (10), which includes accessibility to transport and the possibility of movement on an equal basis to others. All these issues reveal obstacles and a lack of measures to enable full inclusion in the community and they place the person in a situation of dependency caused by extrinsic circumstances which should be resolved in order to achieve full and effective equality of rights.

Eight questions were raised concerning the family, one less than the previous year, and together with issues of equality before the law (2), the integrity of the person (2) are the areas where the people who approach our service feel most helpless.

SIXTH.- Most of the enquiries received concern issues involving a failure to comply with accessibility conditions. In 2012 at least 22 percent of enquiries were in relation to

accessibility in the broadest sense. 18 concerned reasonable accommodations, they were almost always in relation to the area of public employment and access to education and vocational training.

II.- ACTION UNDERTAKEN BY CERMI FOR THE DEFENCE OF COLLECTIVE AND INDIVIDUAL RIGHTS BEFORE THE ADMINISTRATIVE ORGANISATIONS RESPONSIBLE FOR

THE PROTECTION OF THE RIGHTS OF PERSONS WITH DISABILITIES.

CERMI maintains a proactive line of action for defending the rights of people with disabilities dealing with the competent public organisations, operators and private individuals in order to monitor correct compliance with the laws against discrimination.

This line of action has often involved presenting complaints before the administrative bodies, in particular the Specialist Permanent Bureau of the National Disability Council and the Ombudsman.

CERMI presented ten complaints to the Ombudsman in 2012 reporting individual and collective situations of discrimination among which the following are worthy of note: the policies of the Ministry of Education with regard to the entry of students with disabilities in the network of Spanish Schools abroad, the lack of regulation of the subtitling and audio description professions, the lack of development of the aid programme for people with borderline intelligence, the inactivity on the part of the administration in regulating access conditions to goods and services and the possible unconstitutional nature of the reformed system for the care of situations of dependency and care of autonomy formulated by the Government by means of Royal Decree-Law 20/2012, of 13 July.

CERMI presented a complaint to the Andalusian Ombudsman in 2012 in collaboration with CERMI Andalusia in relation to the policies of the social services of that region for the care of mothers with intellectual disabilities.

A total of eleven complaints were presented to the Specialist Permanent Bureau of the National Disability Council in 2012. Many concerned to the same themes as those referred to the Ombudsman and included the following issues: the reservation of posts in the notification of public jobs in health, persons with disabilities not being allowed to travel on tourist cruises, the revision of accessibility conditions in the process for renewing the National Identity Document, the reduction of support to students with disabilities in the Complutense University of Madrid, the amendment to regulations on active insertion income for people with disabilities and the failure to meet accessibility conditions on the part of the Spanish Institute.

IV. REPORTS PRESENTED IN 2012 BY OTHER INSTITUTIONS: SPECIALIST PERMANENT

BUREAU OF THE NATIONAL DISABILITY COUNCIL, THE OMBUDSMAN AND RELATED REGIONAL ORGANISATIONS.

A. ANALYSIS OF THE ANNUAL REPORT OF THE SPECIALIST PERMANENT BUREAU (OPE) OF THE NATIONAL DISABILITY COUNCIL FOR 2012

ENQUIRIES AND COMPLAINTS:

210 complaints and 240 enquiries were presented to the OPE for evaluation during the course of 2012.

• According to the scope of application of the LIONDAU and gender :

SCOPE OF APPLICATION Nº FILES MEN WOMENTelecommunications and

information society43 33 10

Urbanised public spaces, infrastructure and building

34 21 13

Transport 26 19 7Public goods and services 26 12 14

Relations with Public Authorities

201 102 99

Justice administration 1 1 0Cultural heritage 0 0 0

TOTAL 331 188 143

In general it can be appreciated that men present more complaints than women.

• Files per Autonomous Community :

Andalusia 28Aragon 2Asturias 0Castile and León 21Castile-La Mancha 8Catalonia 15Extremadura 1Galicia 18Canary Islands 7Community of Madrid 303Navarre 5Basque Country 9Valencian Community 12Balearic islands 0La Rioja 1Cantabria 8

Murcia 10Ceuta 2Melilla 0

• TELECOMMUNICATIONS AND THE INFORMATION SOCIETY

List of the principal contents in the area of telecommunications and the information society

Reason AmountLack of accessibility to websites 40Lack of subtitling in theatres, RTVE (public service TV)… 5Lack of audio description professionals in films 3Lack of accessibility in mobile telephony 2Lack of accessibility to the Internet for deaf and blind people 2

The response to the complaints from some organisations has been to claim the impossibility of meeting the accessibility requirements due to a lack of financial resources.

A recommendation was made with regard to telephone companies that the Ministry of Industry should make it compulsory for them to incorporate the entire conversation (text, voice and video) for any complaint or information.

• URBANISED PUBLIC SPACES AND BUILDINGS

List of the principal contents in relation to urbanised public spaces and buildings

Reason AmountLack of accessibility to public places 21The installation of lifts in communities 11Parking problems for people with disabilities 6The installation of hydraulic cranes in swimming pools 4Urban architectural barriers 5

Again, the lack of technical and economic resources is causing some of the problems with regard to the accessibility of urbanised public spaces and buildings.

• ACCESS TO AND USE OF TRANSPORT

List of the principal contents on access to and use of transport

Reason AmountLack of accessibility for wheelchair users in train and metro stations, airports…

8

Lack of accessibility on cruises for people with disabilities 6Lack of accessibility for people with disabilities on RENFE, EMT, IBERIA (trains, urban public transport, planes)…

5

Agreements between people with disabilities and transport consortia

4

A lack of subtitling on RENFE… 1

Several complaints reached CERMI about the access of people with hearing difficulties to the recreational craft official boatmaster certificate. Applicable legislation is understood to be inadequate, and these issues were referred to the Ministry of Development. The General Directorate of the Merchant Navy has promised to review these matters.

There are cases of discrimination against people with disabilities, insisting that they travel accompanied on cruises. The OPE considers that there can only be very few cases where a person with a disability should not be allowed to board on the grounds of safety. The recommendation that the General Directorate of the Merchant Navy, together with CERMI with the support of the General Directorate of Support Policies for Disability, should study the measures needed to ensure that the cases when a person with disabilities is not allowed to embark are very few and fully justified.

• PUBLIC GOODS AND SERVICES

List of the principal contents on public goods and services

Reason AmountDiscrimination in Insurance Companies for people with disabilities 4The adaptation of vehicles for people with disabilities 2The lack of accessibility and discrimination in Public Centres 2Enquiries about tourist establishments which meet accessibility standards

1

Enquiries about accessible theatre 1

In relation to a complaint received about an English course given by the Ministry of Education, the OPE considers that by virtue of Article 24 of the Convention, people with disabilities must be assured access to professional training by making the necessary adjustments. To that end, the Ministry have been recommended to amend state legislation to regulate on these adjustments. Again, the lack of financial resources is the reason that some services are being denied to people with disabilities.

• RELATIONS WITH PUBLIC ADMINISTRATIONS.

List of the principal contents on relations with the public administrations.

Reason AmountComplaints about degrees and evaluation of disability by local 48

officesDiscrimination of people with disabilities in different schools, residential homes…

37

Discrimination in Civil Service entrance tests 33Validity of the disability card in other countries 20Pharmaceutical co-payment 19

CERMI presented a complaint to the OPE about the discrimination shown to a person with a disability who had been confined in an old people’s home in circumstances which violated his fundamental rights. It is considered that it would be more appropriate for him to be accommodated in a centre which is specialised in the care of people with disabilities.

Similarly, the OPE suggested that a knowledge of sign language is a skill that should be valued as a criterion for entry to public office. In another area, OPE made a recommendation to the Ministry of Education, Health and the Economy that there should be different deadlines for the termination of studies for people with disabilities in the official announcements of available grants for undertaking researcher training studies.

Furthermore, OPE recommends that the new legislation on assessing the degree of disability should include appraisal of the degree of reduced mobility for blind people.

• JUSTICE ADMINISTRATION

List of the principal contents on Justice Administration

Reason AmountViolation of the right to defence from a court-appointed lawyer 1Discrimination towards people with disabilities in access to jury service.

1

Lack of accessibility for people with disabilities to access the courts

1

With regard to the access of people with disabilities to jury service, CERMI’s complaint is highlighted regarding the rejection of the proposal to reform this institution. The OPE concludes that the Justice Ministry is undertaking research studies in order to adapt the necessary standards to the Convention.

• CULTURAL HERITAGE

List of the principal contents with regard to cultural heritage:

Reason AmountLack of accessibility for people with disabilities to Universal 1

Heritage

OPE undertook a research study on the universal accessibility of various cultural heritage assets, which are included in the appendix accompanying this report. The following cases serve as examples.

Complaints regarding certain opinions appearing in the media are highlighted, where discriminatory terms are used to refer to people with disabilities. The term “autism” is frequently used in a pejorative sense. Some suggestions are made for alternative terms which could be used.

Similarly a study is included on the accessibility of UNESCO World Heritage sites for people with disabilities.

B. ANALYSIS OF THE ANNUAL NATIONAL OMBUDSMAN’S REPORT FOR 2012

• The National Ombudsman’s Report does not contain any reference in its section on statistical information to the complaint files received in relation to people with disabilities.

• The term “minusvalía” (handicapped) is found in certain parts of the report. In this regard, it must be remembered that having a disability must not be understood to belittle a person; the use of this expression must be considered inappropriate and be eradicated.

• The Ombudsman received significant complaints in relation to people with disabilities in the area of social policy, which as the report shows, is traditionally a source of complaints and ex officio actions, a trend which strengthened during 2012.

The following actions in particular should be noted in relation to people with disabilities:

• Prisons

The research into the problems of prisoners with intellectual disabilities in Spanish prisons, undertaken since 2003, is worthy of mention. In 2012 this research focussed on the legal measures included in the framework programme for the treatment of people with this disability who have been confined as a preventive measure, in order to ensure that their condition is adequately reflected in the criminal case.

• Citizenship and Public Safety

In the area of local traffic regulation, recommendations were made to several city councils in relation to parking for people with disabilities.

• Education

Non-university education.Difficulties were reported with regard to the provision of sign language interpreters in secondary schools in Madrid with deaf students. It is presumed that this situation is due to financial restrictions. The Ombudsman recommends that specific needs are taken into consideration in addition to strictly numerical criteria (pursuant to Article 71 of Organic Law 2/2006, on Education).

It is also highlighted that current regulation on special education has still not been adapted to the parameters set by the Convention. Therefore, adjustments should be made according to the needs of each student and not be dependent on a predetermined number of students with special needs.

University education

The Board of the Language Didactics and Literature Department of the Complutense University of Madrid submitted an Agreement to the Ombudsman stating the urgent need to regulate the criteria for the accreditation of students’ disabilities in order to implement the appropriate adaptations. A recommendation was made to ensure that students with disabilities are completely aware of the procedure to follow for these adaptations to be made.

• Health

Several complaints were raised in relation to the change brought by Royal Decree-Law 16/2012 on the contribution by beneficiaries to outpatient pharmaceutical provision, which establishes that this contribution shall be proportional to level of income and that people with disabilities are exempt under the provisions of its specific legislation. It was pointed out that it is not easy to determine the situations where this exemption applies.

Similarly it is pointed out that Law 13/1982 (LISMI) establishes free dispensing of medication for people with disabilities, as long as they are not entitled to public health care by another route, a provision which is practically empty of meaning as the majority of people who are resident in Spain are covered under the National Health Care service. The Health Ministry was requested to promote legal reform to allow the exemption of people with disabilities of 33% or above, irrespective of when they acquired this disability.

• Social Policy

In general the failure of Spanish Law to fully adopt the terms of the Convention is highlighted. It is revealed that the public authorities are not respecting the deadlines set for implementing certain measures. Similarly the legislative technique is criticised, which is occasionally used, of regulating certain issues in relation to disabilities using standards which, in principle, have no connection, thus hampering public awareness.

It is highlighted that a majority of the complaints to the Ombudsman refer to delays in procedures for the assessment, qualification and recognition of the degree of disability; the Public Administrations have been blaming this on the current situation. Many of the complaints referred to the non-payment of subsidies.

However, there have been fewer complaints in relation to accessibility. Although proceedings are still in progress in relation to the accessibility of the railways and the availability of reserved parking spaces for people with disabilities, amongst others.

• Social Security

Several petitions on the grounds of unconstitutionality were made with regard to the amendment of Royal Decree 1369/2006, regulating the Active Insertion Income programme for unemployed people with special financial needs and with difficulty in finding work, in relation to not implementing the exemption of people with disabilities from the requirement of having exhausted their unemployment benefit. It was recommended to the Administration that this requirement should be dropped but this was refused on the grounds that there is a complete social protection system adapted to the needs of this social group.

• Public finances

Complaints are still being received in relation to assessing the requirements demanded for recognition of the exemption on the grounds of disability of Article 93.1 e) of Legislative Royal Decree 2/2004. It is pointed out that legislative development in relation to the assessment of these requirements is still unequal in the different municipalities, due to the administrative doctrine favouring the autonomy of local organisations.

• Transport

Barriers to accessibility are flagged up in rail and sea travel. An attempt was made to justify the former due to a lack of financial resources.

• Urban planning

The excessive delay was mentioned in approving basic conditions of accessibility and non-discrimination for access to public goods and services. In this regard, the Ombudsman considers it essential that the Government and Public Administration adopt an active and committed attitude.

The Development Ministry was asked what the reasons were for this delay but the response was that this was not their area of competence - the Ombudsman called for them to indicate which body is competent under Article 20 of Law 30/1992.

C. ANALYSIS OF OTHER REPORTS C.1. REPORT OF ARARTEKO, OMBUDSMAN OF THE BASQUE COUNTRY

This report shows detailed statistical information on the distribution per area of the complaints presented against the Basque Government. It includes a reference to complaints from people with disabilities: there were seven, which is 0.44% of the total number of complaints received. This information is also broken down per regional department. Likewise, statistical information is included on the ex officio actions brought about by the Institution which renders the figure of 4.35% of complaints concerning people with disabilities.

It highlights the important position occupied by people with disabilities’ rights in the activity of the Basque Country’s Ombudsman. The important social consequences of the economic crisis are highlighted as a setback to the development of promotion policies.

There are many complaints with regard to hearing disabilities, specifically in relation to language students and certain vocational training and university courses.

In the area of transport, complaints have been received about the space reserved for people with reduced mobility inside carriages (having to share with bicycles).

Particular attention is devoted to the treatment received by people with disabilities from the Public Administrations. It was recommended that positive discrimination measures should be implemented in the rules governing their pools of temporary workers to facilitate the access of persons with disabilities to appropriate positions.

Complaints regarding the failure to comply with accessibility legislation were highlighted. Major failures in compliance were discovered in access to a new office in the Lakua area, in a municipal sports centre, architectural barriers in a new primary school and there are no spaces reserved for people with reduced mobility in a sports stadium.

It is also highlighted that the application of tax benefits for people with disabilities is being limited and is often problematic.

This year, there have been a greater number of complaints about disagreements on the degree of dependency recognised by the regional assessment teams. There have also been complaints about the impossibility of obtaining the certificate assessing the accessibility conditions of their buildings, which is needed for people with disabilities to change to adapted subsidised housing.

Accessibility has been a recurring theme in complaints, with regard to public buildings and residential buildings, which do not have lifts.

Finally reference is made to various meetings held by the Ombudsman with the associations that work in the Autonomous Region (FEVAPAS, ELKARTEAN, ONCE,

APDEMA).

C.2. REPORT OF THE DIPUTADO DEL COMÚN , OMBUDSMAN OF THE HIGH COMMISSION FOR THE PARLIAMENT OF THE CANARY ISLANDS

http://www.diputadodelcomun.comAccording to this report, in the distribution made per work area, it can be seen that a total of 109 complaints were received in relation to disability in 2012, which is an increase of 1.6% compared to the previous year. The data on complaints was analysed for each island broken down per area. Particularly with regard to disability, there was one complaint in el Hierro, six in Gran Canaria and one in la Palma, there is no data for the other islands. Finally, the number of outstanding complaints in each of the work areas is also provided, disability is in fourth position with a total of twenty files which are still pending.

Amongst the noteworthy decisions delivered during 2012 in the area of disability, was the recommendation by the Ombudsman to the Ministry of Culture, Sport, Social Policies and Housing of the Government of the Canary Islands urging them to take measures immediately and urgently to deal with files which had been frozen, particularly those requesting recognition of a situation of dependency and their grade and condition, and the subsequent administrative process to decide on individual care programmes. With this serious delay and the fact that there is a resolution deadline of three months, administrative silence may result in pecuniary liability proceedings being filed against the Administration.

This report also provides data on ex officio actions, there being a total of three concerning disability. Complaint E.Q.0341/2012 is highlighted, instituted ex officio and lodged on reception of a report about a serious fall suffered by a person with mobility difficulties in the Courts of La Orotava. The Administration issued a response including a technical report and a project for remodelling the building in line with legislation on disability. Complaint E.Q. 673/2012 is also worthy of note, concerning the discriminatory treatment of a person with an intellectual disability who should be receiving care with specialist resources for serious behavioural disorders, but as the administration does not have these resources, was sent to an occupational centre in a different region. The Administration is required to find a prompt solution to this situation.

General problems are also covered; of particular note in the area of disability is the need to develop legislation throughout the autonomous region with regard to the arbitrary system for dealing with complaints concerning equality of opportunities, non-discrimination and accessibility. This also applies to the system of infringements, which should be classified by the regional legislator. In addition, the urgent need to modify regional legislation on accessibility is highlighted and the need to provide the material and personal means for individuals to be assessed.

With regard to the access of people with disabilities to resources, the situation of people with serious behavioural difficulties and their families is an area of concern. Local residential shelters are in charge of their treatment, but support varies from

island to island, resulting in major inequalities.

Finally, a procedure has been set up for the evaluation and qualification of the degree of disability of people in the Autonomous Region of the Canary Islands, which enables people with disabilities to access the benefits and rights to which they are entitled. The deadlines for processing and resolving requests have been improved; this has resulted in fewer complaints with regard to delays in the recognition of degrees of disability.

C.3. REPORT OF EL JUSTICIA DE ARAGÓN, ARAGON’S OMBUDSMAN

www.eljusticiadearagon.com

• Land use and town planning

In relation to the improvement of accessibility conditions for people with reduced mobility, el Justicia de Aragón made several resolutions on the refusal of grants for the rehabilitation of housing due to a lack of budgetary resources. The inactivity of the Department of Health, Social Welfare and Family of the Autonomous Region of Aragon was mentioned in relation to renovation and the periodic regulatory functioning of the Council for the Promotion of Accessibility and Elimination of barriers.

• Housing

Numerous complaints were presented in 2012 in relation to the difficulty in accessing subsidised public housing due to a shortage. There is growing demand due to the financial crisis and demands for housing are exceeding supply. This housing is for the least fortunate sectors of the population, which include people with disabilities; this circumstance is assessed, together with other socio-economic data, when the housing is allocated by the Department of Social Management and Rentals of Saragossa.

For 2013, the social housing plan of the Government of Aragon includes the promotion of rental properties onto the market for vulnerable individuals and groups. In light of this situation, the Ombudsman of Aragon is aware of the efforts of the Administration but warns of the need to hasten procedures so that a rapid solution to the increasing demand for housing is found in a coordinated fashion with the other administrations involved.

• Social Welfare

A significant amount of the complaints presented in 2012 in this area refer to disagreements about the assessment of degrees of disability. Generally in these cases the Ombudsman for Aragon applies to the Administration for information, but as it is considered that this is merely a question of the objective application of the rules which govern this scale, the position of the Administration is not disputed. The correct application of the rule is checked, and the action taken is passed on to the citizen

making the complaint.

Nevertheless, a suggestion was made for a case that they judged particularly worthy of consideration; it was suggested to the Administration that they should reconsider the situation of a child of ten years of age who had not achieved the necessary score to acknowledge that she had a disability, bearing in mind her particular vulnerability and need for care.

Similarly, in 2012 there have been an increased number of complaints referring to reductions in initially recognised degrees of disability. The Department of Health, Social Welfare and Family was asked to explain the reason for lowering the degree of disability of a child with Down’s syndrome and that of a child with Asperger’s Syndrome.

In relation to the card supplied by the Social Services Institute of Aragon to certify disability, the level of compliance with the requirements of applicable legislation was examined together with the possibility of legislation being broadly interpreted allowing these to be issued for cases of provisional disability.

Four suggestions were made with regard to the most significant cases processed in this area in 2012, one of which was rejected and the other three are still awaiting a response from the Administration. One of the suggestions refers to the requirements for issuing the card certifying degree of disability (the suggestion was not accepted); one refers to medical care for people with sensory disabilities (a response to the suggestion is pending), one refers to issuing a card certifying a provisional disability (a response remains pending) and one refers to a disagreement with a recognised degree of disability (a response to this suggestion is still pending).

Likewise, with reference to the most significant cases, a reminder was made on the legal obligation for the Administrations to collaborate towards improving facilities for the care of people with disabilities.

People in a situation of dependency

In relation to people in a situation of dependency, el Justicia de Aragón warns of the negative impact of the reduction in the budget for this social group: suggestions were made that the Administration should continue with their obligation to approve individual care programmes. The Administration was also urged to look for solutions, even if provisional, to provide help to people in vulnerable situations, specifically when they have a recognised Grade III level of dependency.

In some cases, the grade of dependency has been lowered after it has been reviewed, which has resulted in the benefit which was initially awarded being stopped, and a delay in the preparation of the new programme. Changing these assessments often affects children with Down ’s syndrome, or young people with rare diseases, etc.

The Ombudsman for Aragon insisted that the scale used to assess people in a situation of dependency is an instrument for adults, and therefore its application for children and young people often has less than satisfactory results.

In the area of road safety better monitoring was called for on the part of the competent authorities of the incorrect use of parking spaces reserved for people with

disabilities.

In the area of Public Employment, the obligation was raised to establish mechanisms to enable the access of people with disabilities to statutory temporary work positions in health centres.

In May 2012, el Justicia de Aragón attended the presentation of the research study “the future evolution of the Population with Intellectual Disabilities in Aragon” by Atades in the great hall of the Social Sciences Faculty of the University of Saragossa.

C.4. REPORT OF THE ANDALUSIAN OMBUDSMAN FOR 2012

http://www.defensordelpuebloandaluz.es

The report of the Andalusian Ombudsman includes a table reflecting the number of complaints where disability has been the main theme in the sections referring to social services and dependency and housing services (complaints that remain pending and complaints that have been resolved).

The Andalusian Ombudsman highlights their work in the area of awareness-raising and the promotion of rights: in particular, making a training grant available for people with intellectual disabilities to help them in their integration into the labour market.

Furthermore, in light of a complaint filed by the Andalusian Association of Special Employment Centres, they highlight the serious situation of Special Employment Centres caused by the Council of Andalusia due to delays in their receiving incentive payments. Likewise, discriminatory practice is highlighted in accessing the selective tests convened by a City Council, as a result of failing to allow adaptations to the necessary means and time.

Similarly, complaints were received in relation to the existence of architectural barriers for people with disabilities. Whereas in the area of culture, a complaint was received in relation to the difficulties encountered by people with hearing disabilities attending the cinema, the position of the Administration and of the Associations defending the rights of these people on this subject is yet to be established.

In the sector of education, with regard to out-of-school activities, the necessity is flagged up to ensure that these are fully guaranteed for every student who requests them. The Andalusian Ombudsman indicates that it is appropriate for the Administration to study the possibility of preparing a general action protocol with general guidelines for these activities. It is also pointed out that on occasion the Administration seems to forget that students with disabilities have the legally acknowledged right to educational facilities which have been adapted to their disabilities.

With regard to special education, the main cause of the majority of complaints received in 2012 was the absence in many schools of specific personnel recourses to attend to the needs of pupils with disabilities. The current financial situation has

further complicated these problems but the Administration is urged to continue making an effort to ensure that these schools are properly equipped.

Finally, in relation to the adaption of legislation to the International Convention on the Rights of Persons with Disabilities, an ex officio complaint was initiated bringing the position of the Andalusian Ombudsman to the attention of the Ministry of Equality and Social Welfare in this regard. In this context, the need was highlighted for regional legislation to adapt to the Convention in the same way as State legislation.

C.5. REPORT OF THE SOLICITOR GENERAL OF THE PRINCIPALITY OF ASTURIAS

http://www.procuradorageneral.es

The Solicitor General of the Principality of Asturias processed 307 complaints in 2012, the majority of which refer to issues regarding the social services, and many filed by people in a situation of dependency affected by the major legislative reforms as a result of the enactment of Royal Decree-Law 20/2012, of 13 July, on measures to guarantee budgetary stability and the promotion of competitiveness. The budgetary cuts brought about by this legislation affect people with disabilities in a situation of dependency; likewise, some individual complaints were highlighted with regard to disagreement with the preparation of the Individualised Care Programme. A total of 31 complaints were lodged relative to the provision of social services during 2012, which is 17.92% of the total complaints initiated in that year. Out of this total, eight complaints were processed specifically linked to the issue of disability, which represents 17.02% of all complaints handled in this area. The themes are various, and refer to disagreements with assessed disability percentages, the denial of social benefits, a claim for reimbursement on the part of the Administration of part of a subsidy given to a non-profit organisation for people with disabilities, a complaint about infringement of legislation on promoting accessibility and the suppression of architectural barriers in pedestrian routes on public roads of the special plan in a specific residential area, a lack of recognition of situations of dependency, a failure to meet the provisions contained in a Municipal Ordinance regulating the installation of pavement cafés, and the lack of a ruling by the Administration of the Principality of Asturias about a request for a declaration as a public utility of an association for people with disabilities.

Similarly a significant number of complaints were lodged by people with disabilities on issues concerning financial benefits in general and regarding delays in being awarded the basic social salary, in particular.In the area of employment, the need was flagged up to guarantee the principle of equality in access to the civil service for people with disabilities. To this end, improvements in the management of selection processes for access to employment in the Asturias health administration was called for, on discovering long time gaps in an announcement of places reserved for people with disabilities: the start of the selection process for this group had not been announced yet when candidates from the open shift and internal promotion had already been named, their selection process had come to an end and they were awarded the corresponding positions. Especially

necessary since, in both cases these were positions of identical category and nature, simultaneously announced by a decision of the same date and by the same Ministry.

In the area of accessibility, having observed barriers which made the municipal facility inaccessible and recommending that after the appropriate technical checks, a recommendation was made to the Council of Gijón that its design and layout should properly meet legislation on accessibility and the elimination of barriers. The aforementioned suggestion was expressly accepted by the Council and after the suggestion by this Ombudsman the necessary refurbishment work was effectively carried out.

Finally the Solicitor General paid special attention to the issue referring to education and social integration in the educational context of students with disabilities. In this regard, complaints were highlighted about the insufficiency or non-existence of specific support for students with disabilities, failure to meet minimum dimensions, safety and self-protection standards in a classroom/floor of a school and about a child with a disability being prevented from fully participating in play activities in a school, which should provide for cultural life, and recreational, play and/or sports activities as a whole.

According to the Solicitor General, the necessity of preventing defencelessness and inequality in accessing and enjoying the right to quality education and the need to ensure that the principle of legal safety is met in the context of education, constitute the main needs flagged up by this monitoring body during 2012.

C.6. REPORT OF THE SÍNDIC DE GREUGES OF CATALONIA

http://www.sindic.cat

The Ombudsman highlights the special consideration that the current context demands for people who are in a difficult social situation. In this regard, they highlight the discriminatory effects on people with disabilities caused both by the reduction in economic benefits and by the implementation of measures for participation in funding services.

Statistics are shown on complaints, ex officio actions and enquiries received in 2012, in the area of social services, with regard to people with disabilities. There were 256 complaints, four ex officio actions and 393 enquiries. Similarly a table shows the different areas handled within the subject of disability: adaptation, mobility and accessibility made up 17.76%, domiciliary care 0.77%, occupational centres and special work centres, 1.53%, the recognition of degrees of disability 11.18%, mental health in the area of social assistance 1.68%, residential services and day centres 6.74%, grants and subsidies 56.20% and other matters 4.13%.

The complaint lodged by a group of former workers at a residential centre for people with disabilities regarding the perpetration of physical and mental abuse by some of the workers was very relevant. A recommendation was made for exhaustive monitoring of restraining processes and for the installation of a warning system adapted to the

characteristics of users.

In relation to services for people with disabilities, the conditions of residential service and day care were the object of specific action, in terms of the relaxation of staff ratios in these centres. In this context, it was recommended to the Social Welfare and Family Department that the Catalonian Social Services Quality Plan should be further developed and control measures set up to ensure that adjustments in centres do not affect service quality.

The integration of people with disabilities into the labour market was also a significant theme. Due to the reduction in state budgets for an active employment policy for people with disabilities, an evaluation was carried out of how the rights of this sector are being affected. It was established that these restrictions are compromising the special work centres and the jobs of people with disabilities. The Generalitat were urged to continue with the policy of subsidies aimed at the labour insertion of people with disabilities.

In the area of health, complaints were noted regarding the poor handling of special situations, such as the care of people with mental disabilities.

C.7. REPORT OF THE OMBUDSMAN FOR NAVARRE

http://www.defensornavarra.com

The report was divided into the order of the areas about which there were the most complaints down to the areas with the fewest. Thus, in the area of social welfare and policies there were ten complaints in relation to the care of people with disabilities. In turn, the number of complaints was broken down into the reason for their presentation: on the one hand, in relation to the care of people in a situation of dependency (disagreement with the degree of dependency recognised by the administration and the ending of applications for technical and mobility grants, cutbacks in assistance for dependent people in accordance with budgetary restrictions, etc.) and on the other, in relation to people with disabilities (a dispute about treatment from a teacher, delay in assessing degree of disability, etc.).

Following this order of complaints per area, there were also two complaints about the Civil Service in relation to the selection process priority criteria in favour of people with disabilities, problems which also arise in the temporary employment system. In the area of Finance there were complaints regarding the exemption of vehicles for the exclusive use of people with disabilities. Complaints regarding disability in the area of health refer to the co-payment system and request refunds for people entitled to free medication. In the area of Social Security, complaints are highlighted with regard to the difficulties encountered by people with disabilities in being included the Social Security system. And in regard to public services, complaints refer to the accessibility of public transport for people with disabilities and their being denied parking spaces.

Furthermore, the general data include the most important ex officio actions, which are

also classified by subject area. Thus, two of the most relevant are classified under the area of health, highlighting the exemption from pharmaceutical co-payment of people with disabilities and, classified under Social Security, the incompatibility of disability benefits with a grant to undertake a doctoral thesis. Regulatory suggestions in terms of criminal, criminal procedure and prison law with regard to the handling of people with mental illness are highlighted amongst the most relevant ex officio actions.

With regard to the exemption from co-payment, the Ombudsman was informed that despite the fact that the website of the Ministry of Health states that the exemption applies to people with a disability of above 33%, these provisions are not being implemented in reality. This institution asked the Department of Health for a report in which it was concluded that there was effective coordination with the Social Security system on a national level in order to decide who can benefit from this exemption and to monitor and deal with complaints. The institution became aware of the incompatibility of the study grant with disability benefit thanks to a news item in the media.

In their judgement this was not reasonable and there could be a contradiction in the legislation between both benefits. Therefore, the Spanish Ombudsman was contacted to decide; this did not however prove necessary as a legal ruling on the matter was pending, which decided in favour of the student.

It is worth noting that this institution encourages citizens to present suggestions for improvement, amongst which the report on disability highlights, within the area of Economy and Finance, the request to amend legislation to improve the tax treatment of people with disabilities in relation to inheritance tax, which was well received as a reduction was introduced on acquisitions causa mortis by tax payers with disabilities.

Finally, reference is made to recommendations and suggestions on legal duties per subject area, amongst which can be highlighted: the integration of people with disabilities into the workplace, which was accepted; putting measures into effect to enable the implementation of associations representing these people and the measures required for the people they represent, which was also accepted. There were also more specific recommendations such as those aimed at eventually awarding a flat to people with disabilities which had been refused beforehand, the completion of a temporary recruitment list setting a selection process prioritising people with disabilities and the suggestion that the refusal of a request for parking by people with disabilities be reviewed. All these requests were accepted.

V. FINDINGS OF THE LEGAL CLINIC OF THE BARTOLOMÉ DE LAS CASAS HUMAN RIGHTS INSTITUTE OF THE UNIVERSITY CARLOS III OF MADRID. MASTERS DEGREE IN HUMAN RIGHTS 2012: REPORT ON INVOLUNTARY COMMMITMENT AND LEGAL CAPACITY, REFLECTIONS IN THE LIGHT OF A CASE STUDY.

Prepared by Hilda Garrido Suárez, Roberto Giacomán and Serena Serafinelliunder the direction of Patricia Cuenca Gómez.

• PRESENTATION.

This report includes the principal conclusions of the work undertaken in the legal clinic on “Equality and Non-discrimination on the Grounds of Disability”, III edition, academic year 2011/2012, organised by the Bartolomé de las Casas Human Rights Institute (IDHBC) in collaboration with CERMI.

For some years the IDHBC has been developing a Programme of Legal Clinics directed at postgraduate students devoted to the rights of persons with disabilities. In the academic year 2011/2012 CERMI made a proposal to those in charge of the legal clinic programme about working on a case, referred to in the Report on Disability and Human Rights, Spain Report 2011, which involved the handling of issues with regard to the involuntary commitment and legal capacity of people with disabilities.

After studying the case, it was considered that developing this Clinic could train students and raise their awareness on defending the rights of people with disabilities, facilitate their acquisition of the skills needed for legal practice in this area, encourage reflection on some of the problems that Spanish legislation presents in the light of the International Convention on the Rights of Persons with Disabilities and contribute positively to the work of CERMI in cases such as this.

The Clinic (attended by a Master’s Degree student in Advanced Human Rights Studies and two students of the university’s Master’s Degree in Fundamental Rights) was held over the months of February to June of 2012. It was structured into a training period of twelve teaching hours, covering the contents and general philosophy of the Convention, the regulation of the rights involved in the case both in the Convention and in Spanish legislation, and a research period in which the students worked under the coordination of Patricia Cuenca to detect any possible violations of rights in this case, to identify available defence strategies and to draft legislative proposals to resolve any contradictions and loopholes presented by Spanish legislation in relation to the content of the Convention which, through working on this case, are considered to exist. During the course of the Clinic several meetings were held with Ana Sastre, CERMI’s Delegate for Human Rights and the UN Convention, and Torcuato Recover was consulted, FEAPS’ legal advisor and member of CERMI´s Executive Committee. The students were also able to attend a two-day seminar organised by the Justice and Disability Forum of the General Council of the Judiciary, in Toledo, where issues in relation to the case were covered.

The content of this report is essentially limited to the study of this case until the middle of June 2012 when the work of the legal Clinic came to an end. The data used to complete the report were provided by CERMI as a result of their monitoring of the case which took place from the end of August 2012. It was possible to discover, specify and expand on some of the events from the observations provided by some of the people involved –the judge responsible for the commitment order and the Chief Prosecutor of the Provincial Prosecutor’s Office - to a first draft of this report. The procedure of the

events which took place at the end of the legal Clinic and the current situation of A.E.R. can be found at the end of the report.

• SUMMARY OF THE CASE.

A young person of thirty-two years of age, A.E.R. a Muslim of Moroccan nationality, with a permit for permanent residence in Spain suffered a traffic accident on 27 September 2009 when returning from shopping. A.E.R. does not have family in Spain.

He incurred significant injuries as a result of the accident, a traumatic brain injury, which caused major cognitive impairment. It was arranged for A.E.R. to be transferred from the hospital which had admitted him to a private residential home for the elderly and a request for involuntary commitment was presented on 10 December 2009 signed by a doctor and a social worker at the hospital. There is no evidence of arrangements having been made with the general social services of the municipality or the Regional Community to offer A.E.R. a centre more suited to his age and needs.

After visiting A.E.R. in the hospital, a neighbour was present at the visit, on the basis of the mandatory medical report, the judge agreed to his involuntary commitment in the abovementioned home on 11 December under Article 763 of the Ley de Enjuiciamiento Civil (Civil Procedure Act) (hereinafter LEC).

The management of the home arranged for the accident victim to receive benefit for a major disability and requested the court to authorise the payments of the monthly bills issued by the home from the bank account into which this benefit was paid. At that time no request had been made for the recognition of his degree of disability, or his level and grade of dependency and no arrangements had been made at all in that regard.

On 12 May 2010, the management of the home approached the Provincial Prosecutor’s Office and requested the Public Prosecution Service to start the procedure to modify A.E.R.’s legal capacity, formerly called the incapacitation procedure. On 13 may 2010 the disabilities section of the Prosecutor’s Office started informative proceedings to discover and identify A.E.R.´s relations and, as indicated, arrangements were also made to find an appropriate body to take on guardianship functions. The judge, who authorised the confinement order, transferred the case to the Prosecutor on 24 November 2010 to start, if deemed appropriate, proceedings for the modification of legal capacity.

However, the Prosecutor made no request that the abovementioned procedure should start until 18 November 2011; in other words, almost a year after the request and almost two years after A.E.R. was admitted to the home.

The home sent periodic reports to the court stating that the situation remained the same as when he was admitted. The reports were issued within the deadlines set by law and were delivered to the court every six months. The reports were always repetitious, the same report was sent with a different date. We have no evidence that the judge signing the confinement order visited A.E.R. during the time of his

commitment and the Prosecutor had not done so until the intervention of CERMI in the case and until the informative proceedings had started, to which we shall refer later.

A.E.R.’s condition improved, he started to regain autonomy, he was able to move around; he communicated, although with some difficulty, and he presented with cognitive impairment. In the psychological report, requested by CERMI, it was revealed that in adaptive behaviour, according to the ICAP (Inventory for the Planning of Services and Individual Programming), A.E.R. presented a mental age equivalent to four years and seven months, and the evaluation scales gave the following results:

“The four scales assessed indicate:• Motor skills: he presents with severe mobility difficulties and requires constant

help. Fine movement is affected although he still has the necessary skills for tasks such as writing.

• Social and communication skills: he has fluent and coherent speech although with articulation difficulties. He relates with people appropriately and is a valued person.

• Personal life skills: this person needs help, sometimes complete help in the skills of daily living: hygiene and cleanliness, he needs his food to be cut up and he needs help with dressing.• Skills for living in the community: he does know his date of birth, he uses a

watch but not correctly, he does not use money independently.

For more than two and a half years A.E.R. spent his entire time in the home. Based on a report issued by the home, the judge made an order dated 19 September 2011 rejecting a request presented on 25 May 2011 by D.G.B., a friend of A.E.R., to allow him out of the home to spend a few hours during the weekend with her. A.E.R.’s calls and visits had been restricted due to a unilateral policy of the home. From the beginning of October A.E.R.’s friend D.G.B. was not allowed to visit or speak with him by telephone. This circumstance was not officially reported to the court.

A.E.R. was formally called “moro” (moor) in the home, this term was used to mark his clothing; we learned of this from some photographs that his friend D.G.B. sent to CERMI.

Some of the home workers and users of the centre confirmed that care was not taken with A.E.R.’S diet and he was given foods which are forbidden under his religion, this was denied by the home’s authorities.

D.G.B., who claims to have a close relationship with A.E.R., approached CERMI at the end of August 2011 to report his situation because she considered that some of his rights were being violated. D.G.B. was also in contact with other institutions, including the Ombudsman. She also reported the case to local media at the beginning of October 2011.

In the first instance, CERMI tried to contact A.E.R. by telephone. The management of the home refused communication with A.E.R. stating that his calls were restricted under court order, this turned out not to be true. The management referred CERMI to

the lawyer of the home’s owners, who would, supposedly, provide all the necessary information about A.E.R.’s situation. Contact was made with this lawyer, at the request of CERMI, who made it plain that he would provide no information whatsoever in this regard.

CERMI, who had only learned of the situation through the complaints filed by D.G.B., wrote to the Chief Prosecutor of the province at the beginning of October 2011, and to the Ministry in charge of social services in November 2011, asking for A.E.R.’s situation and any possible violations of his rights to be investigated.As a result of CERMI’s letter and the complaint lodged by the Ombudsman, also presented by D.G.B., the Chief Prosecutor of the province initiated informative proceedings (Proceedings 14/2011) to look into the reported events, the situation and the condition of A.E.R.

These proceedings consisted of bringing the complaint to the attention of the judge who had issued the commitment order, of requesting the medical report on the condition and suitability of the home for the care of the confined person, of asking the manager for information about the home’s visiting and contact hours and of a visit on the part of the Prosecutor’s Office. The proceedings were settled by decree on 29 November 2011, which concluded that the information called for was completely in order and that therefore there had been no violations of A.E.R.’s rights as had been reported. This decree also reported that the Prosecutor’s Office had presented a request to modify legal capacity dated 18 November 2011.

CERMI was eventually able to visit A.E.R. in the home. The visit took place on 13 February 2012. CERMI was able to visit the facilities and saw that the people that A.E.R was interacting with and with whom he shared rooms, meals and conversations were all of a very advanced age. CERMI asked for the intervention of a notary to establish A.E.R.’s legal capacity to enable him to act in defence of his own rights and interests. After an interview with A.E.R. in the presence of the management of the home and with nobody else present from his close circle to support him, the notary considered that he lacked sufficient capacity for this.

On the occasion of this visit, CERMI held an interview on 13 February 2012 with the relevant people from the court and the Prosecutor’s Office to voice its opinion on the inappropriateness of the home for A.E.R.’s real needs and the urgent need to provide him a with a suitable service for his circumstances, age and degree of autonomy. A.E.R. had occasionally mentioned to the people around him and to CERMI itself his desire to return to his family in his country (Morocco).

• ANALYSIS OF POSSIBLE VULNERATIONS OF RIGHTS IN THE CASE.

In order to analyse possible violations of rights in this case, it is necessary to take both the applicable state legislation and the International Convention on the Rights of Persons with Disabilities into consideration. This is because the Convention forms part of domestic law as established in Article 96 of the Spanish Constitution and it also acts as a standard for interpreting the fundamental rights and liberties covered under Article 10.2 of our Constitution.

The above implies that the Convention has two major repercussions on the Spanish legal system. Firstly, the standards covered in this treaty directly apply in the Spanish legal system and cannot be repealed, amended or suspended unless the Convention is amended or denounced. Secondly, the standards established in this international treaty determine the meaning and comprehension of the fundamental rights covered under the Spanish Constitution and under sub constitutional legislation which must be interpreted in conformity with the content of said Convention.

Thus, although some conventional provisions might not be directly applicable, as the full implementation of many of them certainly requires the adoption of different types of complementary measures on a national level, the above does not imply that these provisions are irrelevant to domestic legislation, for two reasons essentially:

• Firstly, because the lack of self-executing character alone does not authorise the contradiction of these provisions. In effect, by virtue of Article 96.1 of the Spanish Constitution, there is always the possibility of a national rule which contrasts with the international treaty being repealed.. Thus, although “public authorities cannot be obliged to adopt laws for implementation demanded by the treaty, legislation which contrasts with it can always be controlled”.

• And secondly, in relation to the above, because, until the pertinent amendments are introduced, current national legislation shall always be interpreted in the sense most favourable to the provisions of the Convention which cannot be considered directly applicable..

Thus the national judiciary is called upon to resolve any possible contradictions and also to address any loopholes generated in Spanish law in incorporating the Convention. In addition, it should be borne in mind that all the provisions of this treaty have in some sense a direct effect, in that all of them either expressly or implicitly contain the prohibition of discrimination on the grounds of disability in relation to the rights they recognise which immediately applies to the national public authorities.

As is apparent from the research study, the case of A.E.R. seems to present certain problems regarding the application of state legislation regulating involuntary commitment, the exercise of legal capacity and other rights. However, these problems are certainly made worse, if – as demanded by the Spanish Constitution – Spanish legislation is interpreted in the light of the demands of the Convention, or even applying the criteria established by the Constitutional Court to safeguard human rights.

• Right to liberty and security

As outlined in the description of the case, after being admitted to hospital following a traffic accident which left him with brain damage and major cognitive impairment, A.E.R was subjected to an involuntary commitment measure under Article 763 of the Civil Procedure Act (hereinunder LEC). In applying this measure, A.E.R was confined in a residential home for the elderly for three years.

Article 763 of the LEC, in the chapter regulating the processes regarding the legal capacity of persons, establishes:

“1. The hospitalisation of a person due to mental disorders who is not in a condition to decide for himself/herself, even should he/she be subject to parental authority or guardianship, shall require court authorisation, which shall be obtained from the court of the place of residence of the person affected by such hospitalisation.

Authorisation shall be obtained prior to hospitalisation, unless reasons of urgency should make it necessary to adopt the measure immediately. In such case, the manager of the centre at which patient was admitted shall give the competent court notice thereof as soon as possible and, in any event, within twenty-four hours, so that the court may proceed to ratify the measure, which must take place within no more than seventy-two hours from the time the court was made aware of the hospitalisation.

In the event of emergency hospitalisations, competence for ratifying the measures shall lie with the court of the place in which the centre of hospitalisation is located. Such court shall act, as appropriate, in accordance with the provisions set forth in paragraph 3, Article 757 contained herein.2. The hospitalisation of minors shall always be done in suitable mental health centres for their age after receiving a report from the minor’s social services.3. Prior to granting authorisation for or ratifying a hospitalisation that has already taken place, the court shall hear the person affected by such decision, the Public Prosecution Service and any another person whose appearance it may deem appropriate or may be requested by the person affected by the measure. Furthermore, the court shall examine the person hospitalised and hear the opinion of the physician in whose care he has been entrusted, notwithstanding taking any other evidence it may deem relevant for the case. In all such procedures, the person affected by the hospitalisation measure shall be entitled to representation and defence under the terms set forth in Article 758 contained herein.In any event, any decision the court may take with regard to the hospitalisation shall be subject to appeal.4. The same decision agreeing to the hospitalisation shall state the obligation of the physicians in charge of the hospitalised person’s care to periodically inform the court on the need to maintain the measure, notwithstanding any other reports the court may require where it deems them relevant.Such periodic reports shall be issued every six months, unless the court should set a shorter period due to the nature of the disorder that has given rise to the hospitalisation.Once such reports are received, the court shall decide on the suitability of whether or not to continue with the hospitalisation after conducting any procedures, if any, it may deem essential.Where the physicians in charge of the hospitalised person’s care should consider it unnecessary to continue with the hospitalisation, they shall discharge the patient and immediately give the competent court notice thereof notwithstanding the provisions set forth in the preceding paragraphs”.

Involuntary commitment – routine or emergency– although not used as a punitive measure, is of course, a coercive measure which implies imprisoning or confining a person in an institution. One of the essential problems with this type of commitment is that, as the term itself indicates, it is not voluntary. The absence of consent is a sine qua non requirement for this type of commitment to take place. In other words, these sorts of commitments, unlike voluntary admissions to hospital, are made against the will of the affected party or without their consent. This issue, which is regarded by most legal doctrine as obvious, is essential since in medical interventions the will of the individual constitutes the keystone of our legal system.

In this context, involuntary commitment constitutes a form of deprivation of freedom which affects a fundamental right recognised under Article 17.1 of the Spanish Constitution. The Constitutional Court categorically confirmed this in STC 132/2010, considering its current regulation, by means of a precept with the status of ordinary law, and not by means of Organic Law, “formally” unconstitutional and urging the legislator to redress this violation. In any case, the Constitutional Court – in order to avoid a regulatory vacuum – has not declared this precept null and void and thus it remains in force neither has it entered into an in-depth analysis of the basis of the regulation as shall be observed as follows, which is questionable from the perspective of the Convention.

Involuntary commitment regulated under Article 763 of the LEC is established as a “special” way of depriving civil liberty that exists when there is a mental disorder which causes the person not to be in a condition to decide for himself or herself as to the appropriateness of the commitment. Doctrine indicates that the wording of Article 763 and the term “mental disorder” gives rise to doubts as to the people for whom involuntary commitment can be decided.

It is generally considered that this precept applies to three groups of people: people with serious mental disorders, people with dementia and those with intellectual disabilities. Probably in a medical context it makes sense to make a distinction between these people by putting them into these segments. However, from a social and legal perspective, they make one single group, especially if the definition made in the Convention is considered: people with disabilities. According to Article 1: “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”. If we take into account this inclusive and not restrictive definition of the Convention, people with serious mental impairment, and those with dementia and those who have an intellectual disability are all people with disabilities.Article 763 LEC, by regulating involuntary commitment without establishing more criteria for its implementation than the fact that the person affected has a psychosocial or intellectual disability constitutes clear discrimination on the grounds of disability, forbidden under the Spanish Constitution, and by Article 5 of the Convention. This regulation clearly runs contrary to Article 14 of the Convention which regulates the right to liberty and security worded as follows:

“1. States Parties shall ensure that persons with disabilities, on an equal basis with

others:

• Enjoy the right to liberty and security of person;

• Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”

For this reason it appears that this “special” precept should be repealed and/or reviewed as recommended by the Committee on the Rights of People with Disabilities and highlighted by CERMI and if necessary, the type of situations which might give rise to involuntary commitment should be regulated in neutral terms in relation to disability in the relevant laws to that effect setting the pertinent guarantees for each situation. The United Nations Special Rapporteur on Torture also considered this commitment to be a breach of the Convention.

In any case, and until this reform takes place, Article 763 LEC needs to be interpreted in conformity with the Convention so that its application is not discriminatory for people with disabilities, this also requires that guarantees are strengthened in the adoption, duration and monitoring of this measure in order to prevent a violation of rights and possible abuse.

Therefore, in this case, if A.E.R.’s acquired cognitive disability was the only reason for his confinement in an institution we would be faced with a clear violation of Article 14 of the Convention, in that, as we have mentioned, this precept expressly establishes that the existence of a disability shall in no case justify a deprivation of liberty.

We can interpret this statement as a requirement of the Convention that there should be a reason for the involuntary commitment of a person other than their disability, or – in a sense, as we see it, more in line with the spirit of this treaty – a requirement that it is not the disability but the situation in which the person finds himself of herself which constitutes a reason to justify involuntary commitment.

In order to determine the criteria which should be used in decision-making, it is important to remember that involuntary commitment for our Constitutional Court is a civil form of deprivation of liberty and therefore a restriction of a fundamental right. For this reason, the consolidated doctrine of the Constitutional Court in relation to the limitation or restriction of fundamental rights should be taken into account in the application of Article 763 LEC.

Certainly, liberty is not an absolute right and allows limitations. However, as declared by the Constitutional Court itself, any legislation which provides for a limitation to the exercise of this right must respect the “proportionality between the right to liberty and

the restriction of this liberty, in such a way that –even if covered under the law- restrictions of liberty are excluded, which if they are not reasonable, disrupt the balance between the right and its limitation”. Therefore in the application of Article 763 of LEC –and any other future regulation in this area– the criteria of necessity, appropriateness and proportionality need to be used which require the restriction of liberty to have an objective and reasonable justification, and therefore a legitimate aim, be appropriate to achieve this aim, be the least severe of those available implying the least possible impact on the right which is being limited, and not be disproportionate. In addition, the Constitutional Court indicated that while Article 763 establishes a measure which implies a deprivation of personal freedom, explicit and reinforced reasoning is required of the combination of elements which enable it to be understood as justified. The application of the criteria of necessity, appropriateness and proportionality cannot be circumvented or made less thorough due to the situation of disability of the person whose liberty might be affected, but must be made under the same conditions as in other situations.

Determining the need for the measure would be a question of establishing whether its adoption was aimed at preventing damage to the person, i.e., a danger to their physical and moral integrity or to other people and of thoroughly evaluating the gravity and scope of this damage..

In the case of A.E.R., adopting the measure to commit him was to meet an urgent care need and also had therapeutic purposes. In effect, in the judgement of the hospital, A.E.R was in a condition to be discharged, but could not manage the usual barriers on his own, had no family members or anybody who could or wanted to take charge of his new situation and was unable to express his will.

Thus, it could be understood that the commitment offered this person protection, security, attention and basic care which at the time of the request and of the legal decision, would not have been guaranteed without the measure. In any event, we have to point out that part of legal doctrine considers that involuntary commitment for the purpose of care is difficult to justify. CERMI has also emphasised that the commitment covered under Article 763 cannot become, as often seems to be happening, a ”routine“ measure for the care of people with disabilities. However, the ECHR states that the objective need for social care, as long as there is a serious mental disorder, can be taken into account in the implementation of measures which involve the deprivation of liberty.

On this point it is also necessary to examine whether it was appropriate to deprive A.E.R. of his liberty, and question whether the involuntary commitment measure regulated under Article 763 LEC was appropriate for the desired purpose and if so, whether it was the only protection mechanism available to meet his needs or, in any case, the least harmful to his fundamental rights and whether a judgement of proportionality was made as to the advantages and sacrifices involved in adopting this measure. To this would have to be added the necessary assessment of the suitability of the centre in which A.E.R. was to be confined and the appropriateness of the service it offered him, determining whether it met his situation and needs satisfactorily.

Involuntary commitment regulated under Article 763 LEC must be considered a last resort and an extraordinary measure which may only be considered when no other treatment or protection measure has proved effective. This is because depriving a person of their liberty by involuntary commitment is a coercive and aggressive act, which although reversible, results in a stigma being attached to the person and places them in a particularly vulnerable situation which can lead to abuse and the violation of other rights. In relation to this consideration, there is reasonable doubt as to whether recourse to health legislation and the early activation of mainstream available care services are less drastic measures which might have prevented the use of the confinement measure. If it is established that there are no alternative mechanisms to tackle these situations, the involuntary commitment of 763 being the only resort, then we are faced with a loophole that needs to be corrected particularly in light of the principles of the Convention.

From the wording of Article 763 LEC, a general situation of substitution of consent is established. The role of the judge in these commitments is, precisely, to provide this consent for a person who cannot decide for himself or herself, in other words, to substitute people with “mental disorders” in consenting to their commitment. To assess the appropriateness of agreeing to, or not agreeing to, this involuntary commitment measure, judges base their criteria on medical reports referring to the person’s state of health. As indicated by the Constitutional Court in Ruling 141/2012, these reports must include concrete arguments on the necessity and proportionality of the measure and must not conform to stereotyped formulae.

In addition, in order to authorise involuntary commitment Spanish legislation states that “the court shall listen to the person affected by the decision, to the Public Prosecution Service and any other person whose appearance is deemed appropriate or is requested by the person affected by the measure” . The procedure for hearing the interested party is particularly important in light of the principles guiding the Convention which call for the participation of people with disabilities in all decisions which affect them. The doctrine of the ECHR regarding the deprivation of liberty of persons with disabilities also covers this aspect. The application of Article 12 of the Convention, in relation to legal capacity, demands that the support measures needed to enable the person to decide “for himself or herself” with regard to their commitment are put in place in hearing proceedings. Likewise, the application of Article 763 in conformity with the Convention will always allow the person’s family and friends a voice in order to better judge the need for the measure and take their wishes and preferences into consideration with regard, for example, to the place in which they are to be placed.

In the case of A.E.R., the judicial committee – comprising the judge, legal secretary and doctor - after the request for involuntary commitment in a residential home for the elderly, presented on the 10 December 2009 by the hospital to which he was admitted after his accident, visited him in the hospital on that same day, 10 December 2009. A medical report was issued on 11 December on the need for commitment and it was passed to the Public Prosecutor, who confirmed they did not oppose the measure. That same day, 11 December, the judge made an order in favour of the commitment and informed the hospital of this by fax.

From the information that we have, it appears that A.E.R. could not communicate and therefore could not express his wishes in relation to his placement in the home for the elderly and could not have been “heard” at that time. “A neighbour” was casually with A.E.R. during the legal examination, her presence is noted in the examination record although, completely illogically, she is not identified in the legal proceedings and we do not know how close or otherwise her relationship is with A.E.R., neither do we know if it was D.G.B.

Although the presence of this person can be considered a positive interpretation of Article 763 in line with the Convention, it should be borne in mind that her appearance was not requested by the court, and neither was that of anybody else from A.E.R.’s circle of friends, which the hospital could have made enquiries about. Furthermore, we have no information to enable us to be certain that an interview in relation to the commitment really took place with this neighbour specifically to establish A.E.R.’s preferences and lifestyle, as required to fully conform to the Convention, and we have no record of the content of this person’s statements. The name of the person and the content of the interview should have been included in the examination record, and in the commitment order itself. In any event, this circumstance does not strictly affect the legality of the commitment in terms of Spanish legislation.

To return to material matters, it could be considered that the urgency of the situation, the doubts as to the existence of alternative measures, the consideration that such measures might offer fewer guarantees in terms of the protection of the person and take longer to implement and the impossibility of A.E.R. expressing his wishes might justify the initial adoption of the involuntary commitment measure. However, there are other circumstances in this case which call into doubt the necessity, appropriateness and proportionality of this measure.

Thus, in the first place, although this aspect is covered later, the suitability to A.E.R.’s circumstances of the centre where the commitment took place is questionable.

Article 763 LEC refers to commitment on the grounds of mental disorder. However, it does not specify the type of establishment where this commitment should take place. It would be logical to take it that if we are referring to mental disorders, commitment under 763 should not be interpreted as a punitive or social isolation measure, as its main aim is to protect the person “who cannot decide for himself or herself”, and that the places of confinement should be equipped not only to help and care for the person, but also to provide appropriate rehabilitation and to promote their autonomy and inclusion in the community. The ECHR also established that there should be a correlation between the place and the reason for the commitment.

In A.E.R.’s case the place of confinement, a home for the elderly arranged by the hospital’s social service, is difficult to justify in the light of the Convention or Spanish legislation. With the idea that involuntary commitment should be as painless as possible in terms of time and form, a specialist centre should have been sought for A.E.R. where he could have contact with people of his own age which would be more appropriate to allow him the support for his specific needs and to promote his

recovery, autonomy and optimal social inclusion. However, despite the existence of more appropriate centres in the area where A.E.R lives, he was placed in a home for the elderly in order to cover his need for care and assistance as quickly as possible. The choice of the centre for the commitment – proposed by the hospital social worker who arranged his discharge and accepted by the judge - we consider was made not so much after careful consideration of the characteristics of the centre and the situation of the person, but rather to deal with the urgency of the situation, given a lack of resources and the presumed impossibility of A.E.R. having access to other centres.

It is possible that the home for the elderly used for the commitment was the only centre where there was an available place and which could initially accept A.E.R. Or the only place which could be reached for arrangements to be made for A.E.R.’s commitment. In any case, we have no evidence that arrangements were made with the general social services of the municipality or the autonomous region to provide a centre more appropriate to A.E.R.’s specific needs and suitable for his age, but rather that the centre was determined by the health services, including the social services of the hospital. As shall be seen later, other information demonstrates that A.E.R.’s situation was not made known to the competent social services administration (the regional ministry of the relevant autonomous region) until CERMI’s intervention in the case. Thus, it appears that there was no effective coordination between the health and social services geared, initially, at determining the most appropriate resource and service; this could have occurred despite the urgent care need presented, given the time spent by A.E.R. in the hospital. And if the initial choice of centre was inappropriate, then it was all the more inappropriate not to question its suitability at any time throughout the extensive duration of the measure.

In effect, although the initial presumed lack of available places in more suitable centres could justify A.E.R.’s placement in the home for the elderly, his lengthy stay in the home appears to be highly questionable. If, at the time of the commitment, the only resource available to A.E.R. was a home for the elderly, it should have been arranged for him to be transferred to another centre as soon as possible. Despite the fact that A.E.R. received care, help and rehabilitation in the home for the elderly, we consider it obvious that this centre was not the most appropriate for a young man of 32 and that it was highly unlikely to specialise in situations of acquired brain damage. The fact that it was a private home also implied that A.E.R. would have to cover the total cost of his place there.

Despite the lack of resources, it does not seem very reasonable to assume that in over two and a half years no other places would become available. We have no evidence that the relevant agents made any arrangements to transfer A.E.R. to a more suitable centre only to find that there were no places, until the intervention of CERMI in the case. If these arrangements had been made and been unsuccessful, one of the reasons for there being no alternative centre available would have doubtless been that A.E.R.’s level of dependency had not been officially assessed – despite the elementary and relevant nature of this procedure and the length of his confinement – thus preventing him from accessing certain public or subsidised resources and places which would also have been less costly for him. The negative impact of this circumstance – caused by the different actors involved, as we shall see later – on finding another available place for

A.E.R. could be directly demonstrated by CERMI when they contacted other centres in their monitoring of the case. Similarly, the delay in adopting measures for modifying legal capacity, which could have lead to a tutelary foundation assuming guardianship or curatorship which had residential or other resources - which in fact did happen in the end – served to lengthen A.E.R.’s stay in the home for the elderly.

In the meeting that CERMI held with the regional Prosecutor’s Office and the person responsible from the court that had issued the commitment order in February 2012, the court expressed their willingness to allow A.E.R. to be transferred to a more appropriate centre, channelling this through the request from the Prosecutor’s Office. In this interview, CERMI suggested and offered an urgent transfer to third sector organisations whom they had contacted and who were willing to offer immediate care, as soon as the administrative situation had been resolved and access to social service or dependency benefits which had not been organised, had been arranged. Eventually, the court decided that, as there had been a legal ruling making the commitment, this should be cancelled when a peaceable and final decision on the case of A.E.R. had been reached. In this context, it was understood that it was appropriate to wait until the procedure for modifying legal capacity had progressed for A.E.R. to be transferred as soon as he had been awarded a guardian.

However, on 31 July 2012, the autonomous social administration in the province in question – with an absolutely unjustifiable delay, bearing in mind that in November 2011 CERMI had also filed a complaint with the Social Services Department who did not seem to be aware of A.E.R.’s situation – sent a letter to the court responsible for the commitment order which did indeed point out that the home for the elderly was not appropriate and suggesting transfer to another centre, but in a different province. In our judgement, this transfer – which eventually did not take place because the process to modify legal capacity was well underway– would not have been appropriate because it would have hampered A.E.R.’s relationships with his friends.

Although, as indicated, it was the hospital social worker who had arranged the place in the home for the elderly, this does not mean it should be taken for granted without further verification that it is the social services of the autonomous community who allocate commitment centres. The records of this case, CERMI’s groundwork, and the fact that recognition of the situation of disability and dependency had not been requested would seem to indicate that the social services of the autonomous region had not been appropriately informed of A.E.R.’s situation. All this points to, at the very least, administrative malfunction which has had a negative impact on the person with a disability. As mentioned earlier, the desire to find a rapid solution to care needs on discharge from hospital became a priority over other considerations. The social services of the region who, in effect, are responsible for enabling access to appropriate centres and adequate care, had no information on A.E.R. until CERMI contacted them in November 2011. In any case, the aforementioned does not justify these services leaving it until 31 July 2012 to check the suitability of the centre and suggest a transfer.

Regardless of the competence of the social services – given that this involved an involuntary commitment, we consider that the court, as the ultimate guarantor of A.E.R.’s situation and of the protection of his rights, also had a responsibility in the

initial decision as to the centre of the commitment and, of course of A.E.R.’s being sent to a home for the elderly without questioning its suitability. This can also be said of the Public Prosecution Service.

Maintaining the commitment measure and its long duration, and the conditions leading to its systematic prolongation, appear questionable to us in terms of the appropriate interpretation of Spanish legislation in conformity with the Convention. As the Constitutional Court states, both the applicability of the measure and its complete duration must in each specific case meet the requirements of necessity and proportionality..

The restriction of the right to liberty involved in an involuntary commitment must only be maintained for the time considered essential to achieve the purpose for which the measure was justified. The ECHR stressed this requirement in the ruling Winterwerp v. Holanda of 24 October 1979 mentioning amongst the conditions to be met by the deprivation of liberty that commitment shall not continue beyond the duration of the disorder. A.E.R. remained confined for three years involuntarily in a centre which was not suitable for his age or situation when the need for emergency care which might have initially justified his involuntary commitment had been covered and when alternative measures could have been put in place to bring this measure to an end.

Involuntary commitment as a deprivation of liberty must not last longer than is essential. Therefore it is necessary to adapt the circumstances where commitments are ordered to the individual and set appropriate monitoring deadlines. Article 763.4 LEC establishes that “The same decision agreeing to the hospitalisation shall state the obligation of the physicians in charge of the hospitalised person’s care to periodically inform the court on the need to maintain the measure, notwithstanding any other reports the court may require where it deems them relevant.” In other words, the judicial supervisory body shall receive at least one report from the doctors who have attended the person, although the court can ask for more. These reports must be written at least every six months.

In the case of A.E.R., the monitoring of the measure on the part of the court and the Prosecutor’s Office was limited to routine compliance with the rule, i.e., to the reception of periodic reports issued every six months (the maximum deadline) by the home for the elderly where the commitment took place, without making use of other mechanisms which would have allowed better monitoring of the measure and better protection of the rights of the committed person which are required in conformity with the Convention. At this point, the order of the Provincial Court of Vizcaya sec. 4ª, of 18 April 2012 is worth mentioning, which states that although not strictly demanded by Spanish legislation, until domestic legislation has been adapted to the Convention, the same guarantees for monitoring the authorisation or ratification of a commitment should be transferred to its continuation or prolongation, effectively monitoring it without this monitoring being reduced to the reception of reports issued by the doctors at the home “because each court ruling authorising the continuation of a commitment is a lengthening of the deprivation of liberty, curtailing the fundamental right to liberty and therefore the same guarantees shall be required”. This would mean,

as this order indicates, transferring the legal procedure provided to authorise or ratify a commitment to the legal ruling which agrees to its continuation, and in so doing demand that the court listen to the person affected and call for medical opinion, in addition to listening to the Public Prosecution Service and any other person deemed appropriate, and undertaking all other proceedings it judges essential.

In the case studied, and given the circumstances which caused A.E.R.’s cognitive impairment, which might have a positive outcome over time, we consider that the scrupulous fulfilment of the requirements of necessity, appropriateness and proportionality would have required lower deadlines to be set for monitoring the measure and receiving the relevant reports. On the other hand, the possible existence of a conflict of interests with the home, in that they might have been interested in maintaining the situation as they were receiving direct payment for the cost of the place from the account where A.E.R.’s disability benefit was paid, would have made it advisable for the Court to request specific reports from the medical officer or an independent doctor, or to have referred the matter to the competent administrative authority to make enquiries and adopt the relevant measures.

We understand from the information we have gathered, that the management of the centre in which A.E.R. was placed sent reports issued by public hospital neurology departments, which A.E.R. attended for periodic revisions of his condition, along with the report from the centre’s doctor to the court when in the months of May and November (when extensions took place). These additional reports, therefore, were not issued every six months and were not expressly requested for the times when maintenance of the commitment was to be reviewed. Thus, for example, on 26 May 2011 and 7 November 2011 the same neurology department report dated 20 May 2011 was submitted. And, in addition, on 16 May 2012 a new report was not included but an appointment for the neurology service of 1 June 2012 was. In addition, we understand that these reports did not make any specific reference to the need to extend the commitment; they only referred to A.E.R.’s general neurological condition. Occasionally the results of clinical analyses were sent giving the same information. In none of the extensions to the commitment did the judge of his own accord ask for an alternative report on the need to maintain the measure as would have been advisable. In the framework of the informative proceedings instituted by the person responsible from the Provincial Prosecutor’s Office in October 2011, a report from the medical officer was requested on the condition and suitability of the centre. In the decree through which these proceedings are filed, it is not indicated whether this report expressly stated the need to continue with the commitment measure, it only mentions that A.E.R. was receiving appropriate medical care, although the court indicates that this medical report did state the need to continue the commitment.

Likewise, it would have been very advisable for the court and/or the Prosecutor’s Office – the latter fulfilling their inspection obligation – to have visited and allowed A.E.R. a hearing for the subsequent extensions to the commitment. Thus A.E.R.’s opinion could have been heard – which was not possible at the time the measure was enforced– as the progress of his condition meant he could communicate, albeit with difficulty, as demonstrated and supported in the psychological report instigated by CERMI. Visiting and listening to A.E.R. would have been important not only to decide with more and

better information on whether to end or continue the commitment and take into account his preferences and hear his concerns, but also to determine the need to put in a request for his legal capacity to be modified, if this need had not been clear at first.

As can be seen from the account of the facts, we have no evidence that the court visited A.E.R. throughout his extended confinement or of his having been allowed a hearing with regard to the decision whether to continue the measure or not. The Prosecutor’s Office did visit A.E.R. in the course of the aforementioned informative proceedings on his situation instigated in October 2011 as a result of the communication from CERMI and the complaint received from the Ombudsman. In any case, it is significant that in the Decree of 29 November 2011 filing these Informative Proceedings 14/2011, the actions taken and their results are detailed individually and thoroughly yet not the slightest reference is made to a hearing with A.E.R. and there is no record of his opinion of the events investigated (that is, his stay in the centre and any possible violation of his rights).

Visits to centres are essential to ensure that the justification for maintaining a commitment is really being monitored, especially in the circumstances of this case, bearing in mind A.E.R’S social and personal conditions and the time that the involuntary commitment had been maintained. Not allowing A.E.R. a hearing – we stress it was not possible to hear him initially– implies a lack of awareness of the obligation to respect “the will and preferences of the person” established as a safeguard under Article 12.4 of the Convention.

As previously indicated, the reports that the management of the centre were sending periodically to the court were always repetitious, practically identical; the same report was issued with a different date. On this point it is worth highlighting some contradictions that we have detected in the assessment by some of the agents involved of the evolution of A.E.R.’s situation. These repetitious reports, written for the successive extensions of the commitment, imply that A.E.R.’s situation had practically not changed. The lack of significant improvement was put forward by the management of the home as a reason to reject D.G.B’s request to occasionally allow A.E.R. to leave the centre for a few hours at the weekend in her company. This presumed lack of improvement which is taken into consideration by the court to decide the extensions to the commitment and refuse the request to leave the centre, should have called into question the suitability of the centre for the elderly for the treatment and rehabilitation of A.E.R. However, conversely, the management of the centre and its doctors, to justify the appropriateness of the treatment given, alleged that the young man’s situation had progressed very positively from the time of his commitment. According to the Prosecutor’s Office analysis of the suitability of the home – at the time of the visit as a result of the informative proceedings instigated in 2011 – A.E.R’s progress is described as “spectacular”.

The changing circumstances of the individual should have been accompanied by a change to the commitment measure which remained rigid and inflexible for almost three years and was applied to a situation which was no longer that which had justified it. As shall be demonstrated, there is no doubt that the failure to adopt measures with regard to A.E.R.’s legal capacity and with regard to his situation of dependency – which

will be examined later and which affect other rights covered under Spanish legislation and the Convention – has resulted in maintaining this situation and has, beyond all necessity, subjected this person to a coercive measure which has affected his rights more than a voluntary admission.

Given A.E.R’s progress, the possibility could not be ruled out that in time he could have been able to decide himself – if necessary with the appropriate support- on the continuation of his commitment which might even have become voluntary. In any case, his opinion should have been heard, especially in consideration, as has been stressed, of Article 12.4 of the Convention. CERMI was able to establish that A.E.R. is capable of communicating with fluency and coherently, although he has problems with articulation of speech. As confirmed by the ECHR, when ordering a commitment and we might add when maintaining it, “as far as possible” the wishes of a person capable of expressing their will must be taken into account, as a failure to do so can result in situations of abuse and infringe the exercise of rights. In fact, as shall be examined later, A.E.R. suffered restrictions during his confinement to the exercise of other rights beyond his right to liberty which if these are considered unjustified could call in to question the legal provenance of the measure.

It can be gathered from all of the above that A.E.R.’s right to liberty might have been violated in the case studied, or at least, have been excessively restricted as the criteria of necessity, appropriateness and proportionality were not respected in maintaining the involuntary commitment measure in a centre for the elderly which in our opinion was badly chosen from the start and in any case, it is clear that the measure was extended far longer than was essential. This possible violation deriving from an isolated application of national legislation becomes more evident when this legislation is interpreted in conformity with the Convention.

3.2. The right to exercise legal capacity

A.E.R. was subjected to a measure of involuntary commitment from 11 December 2009 to 18 November 2011; no request was put in place to start the procedure for modifying legal capacity to allow him to receive the support in decision making that he required. Eventually a ruling was passed awarding him a guardian on 1 October 2012.

The procedure for modifying legal capacity and the commitment are independent of one another and therefore one can take place without the other (although the wording of Article 757.2 and 3 of the LEC usually calls on the Public Prosecution Office, in exercising their due diligence, and by the imperative of Article 3.7 of its Organic Stature, to start incapacity proceedings when transferring from an involuntary commitment gives them the data referred to in those precepts). However, in A.E.R.’s particular circumstances a failure to adopt measures to modify legal capacity placed him in a totally powerless and legally defenceless situation which could have resulted in the violation of other rights and involve enormous difficulty in addressing this. In effect A.E.R. was never acknowledged to have the “natural capacity” to make his own decisions and thus exercise different rights; he was constantly replaced by the court (the commitment, its extension, the possibility of leaving the centre, i.e., where and with whom and even how to live) and/or the authorities and / or doctors of the

home (visits, communication, medical treatment, etc.). The “mental disorder” that was used to justify his commitment served as a presumption of de facto absence of this natural capacity.

However, for almost two years no request was made to modify legal capacity which would have lead to the adoption of effective measures which could have compensated for this presumed lack of natural capacity.

Furthermore, the informal support that his close friends could have provided was not taken into account either to help him to express his will, desires and preferences. Thus A.E.R. was deprived of the right to exercise his legal capacity and given the instrumental and central nature of this right, its denial prevented A.E.R. from exercising other rights.

As indicated regarding the regulation of involuntary commitment, it is appropriate to bear in mind that Spanish legislation needs to be amended to adapt to the right to equal legal capacity of Article 12 of the Convention, a reform that the Spanish legislator is committed to introduce. This reform would not only affect civil legislation which regulates the institution of incapacitation, but it would also affect other legislative areas and the regulation of involuntary commitment.

Article 12 of the Convention reaffirms that “persons with disabilities have the right to recognition everywhere as persons before the law” (section 1) and obliges States parties to recognise that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” (section 2); and to “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (section 3); to ensure “that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law” specifying some of them (section 4); and finally it alludes (in section 5) to the obligation to ensure persons with disabilities access to a series of assets where traditionally their equal opportunities have been infringed.

The institution of incapacitation is shaped in the Spanish system as a measure aimed at limiting or restricting –not so much promoting – legal capacity (to act according to the terminology employed by Spanish legislation), based on personal characteristics – the existence of a disability - and not so much on the social situation. It can involve completely substituting the decision-making of the “incapacitated” person via a guardian – this is most common – or their being assisted by a curator.

Again, the interpretation of this regulation in the light of Article 12 of the Convention – which some judges are opting for- would enable some of the problems that it presents to be overcome, while the system is undergoing reform.

In this case even the “strict” or “standard” application of current legislation, which might have (and in fact did) lead to the total incapacitation of A.E.R. and the appointment of a guardian – although not the most desirable solution from the perspective of the Convention, which would advise the appointment of a curator or

support person to assist the person in decision-making – would, in our judgement, be preferable to the undetermined legal situation he had been in for almost three years.

In other words, during this time A.E.R. was not able to make decisions in relation to his life, as it was considered that his cognitive disability constituted an insurmountable obstacle to his legal capacity. Yet, as there were no measures to modify legal capacity there was no person/institution to act as a guardian or curator to ensure his best interests and ensure him the exercise of his rights.

As has been noted, A.E.R. was substituted de facto in decision making either by the court responsible for the commitment order which, as far as we are aware, did not allow him a hearing or listen to his opinion, or by the authorities of a home who were in daily contact with him but where there could be a conflict of interests and where undue influence could have been exercised failing to uphold the safeguards covered in Article 12.4 of the Convention. These third parties who substituted A.E.R. in his decision making did not attempt to establish his will, desires and preferences as demanded by the Convention, neither did they act at all times “in his best interest”, which the Civil Code requires of guardians (and in this case, of the de facto guardian) causing him possible harm (particularly in the procedure for recognising his degree and level of dependency, as we shall see). Although the appointment of a guardian would also have meant decision-making substitution for A.E.R. – we consider, with the General Prosecutor’s Office, it more appropriate for him to have a curator or support person – it would have better safeguarded his situation than having no measure at all regarding his legal capacity.

Furthermore, the legal “limbo” in which A.E.R was placed during this time hampered, if not ruled out, any possibilities of defending his rights – he did not have natural capacity or any formalised measures to exercise his legal capacity, or any recognition or provision of informal support.

Procedural legislation establishes that the procedure for modifying legal capacity, termed thus since 2009, can be initiated by “the presumed incompetent, the spouse or the person in a de facto situation of a similar nature, the descendants, ascendants or siblings of the presumed incompetent”. It is an obligation for the Public Prosecution Service to request incapacitation if these people do not exist or have not requested incapacitation.. The LEC also provides that “Any person is authorised to notify the Public Prosecution Service of the facts that may be decisive to determine the incapacitation. The authorities and civil servants who, by reason of their posts, are aware of the existence of a possible cause for incapacitation of a person shall notify this cause to the Public Prosecution Service”. In addition Article 762.2 of LEC states, that “The Public Prosecution Service may likewise petition the court to immediately adopt the measures referred to in the preceding paragraph should it become aware of a possible cause of incapacitation in a person”. Even Article 763.3 of the LEC could be interpreted as placing this obligation on the management of the home, considered for these purposes to be an authority aware of this cause by virtue of their responsibility.

Thus, it is the obligation of the Public Prosecution Service to act in relation to those persons who have not, either themselves or by means of their family, requested

measures to enable the exercise of their legal capacity. Moreover, in accordance with Article 762.1 of the LEC, where a judge has become aware of a possible cause of incapacitation they are obliged to “adopt any measures he or she may deem necessary to suitably protect the allegedly uncapacitated person or his assets” and to inform the Public Prosecution Service so that it may initiate the incapacitation proceedings should it deem them appropriate.

In this case, both the court ordering the measure and deciding on its maintenance and the Public Prosecution Service, whose intervention in making the involuntary commitment decision is mandatory, were aware of A.E.R.’s situation.

Although it seems questionable, it could be argued that taking into account the origin of this need for support and the “uncertainty” as to how A.E.R. would progress, these authorities did not at first consider it essential or appropriate to initiate the procedure for modifying his legal capacity (also bearing in mind the notes which remain in Spanish Legislation on incapacitation and its practical application, which can make it a disproportionate measure).

It is the obligation of the management of the home for the elderly where A.E.R. was placed, as his de facto guardian as set out in Art. 303 and following articles of the Civil Code and as the authority aware of his situation, to instigate the procedure for appointing a guardian by virtue of Article 229 of the Civil Code and Article 763.3 of the LEC. In compliance with this obligation, on 12 May 2010 the management of the home approached the provincial Prosecutor’s Office to request that they start the procedure for modifying A.E.R.’s legal capacity. On 13 May 2010 the disability section of the Prosecutor’s Office initiated informative proceedings where they requested information from the Moroccan Consulate about the identity and family of A.E.R. and did not receive a response and, we are told, arrangements were made (we do not know the scope or content of these) to find an appropriate foundation to assume the functions of guardianship.

Almost a year after the commitment, on 24 November 2010, the court made an order referring the case to the Prosecution Service to instigate incapacitation under Article 762 LEC, should they deem it appropriate. As we mentioned earlier it could be understood that this delay was because the need to adopt measures to modify legal capacity was not at first obvious, although it is a little surprising that this action did not take place until six months after the management of the home approached the Public Prosecution Service and after the initiation of the proceedings to find members of A.E.R.’s family.

In any case, the Prosecutor’s Office left it until 18 November 2011 to present a request to modify legal capacity – one year after the referral from the court, a year and a half after the management of the home had approached them and one year, eleven months and seven days after the commitment – after the complaint submitted by CERMI and the Ombudsman and after informative proceedings 14/2011 had been started to establish the situation and condition of A.E.R. Eventually and as we shall relate at the end of this report, a ruling was not made until 1 October 2012, which means that, incomprehensibly, A.E.R. had gone without receiving the necessary

decision-making support for two years and almost ten months, i.e., nearly three years, and had been attended in a service which was not appropriate, despite being within the legal protection circuit.

We consider that this delay, given the ongoing difficulties of A.E.R in making his own decisions – this was taken into account as a basis for the decision to maintain the commitment measure – cannot be justified.

This delay being excused by being unable to find A.E.R.’s family members does not appear convincing to us, especially when we were not informed, given the lack of response from the Moroccan Consulate to the requests of the Prosecutor’s Office, that other actions or arrangements had been made with people close to A.E.R. who could easily have been identified with the help of the home, where they visited him, or even from the court itself where D.G.B. had presented a written request for A.E.R to be allowed out of the centre accompanied by her. D.G.B. informed us that she had been in close contact with A.E.R.’s family during this time. When CERMI visited the home, the management of the home even told us that on occasion A.E.R. had been able to talk to his family in Morocco on the telephone, which leads us to believe that they had been located and were perfectly locatable by the home. Furthermore, there are tutelary foundations in A.E.R.’s autonomous region who could have assumed his guardianship, or preferably curatorship, or who could have been urgently appointed to undertake their duty of care as Legal Defender, while the search for his family members continued.

This delay was particularly serious in this case, as there were no other people entitled under the LEC to present the request and given the situation of deprivation of liberty faced by A.E.R. The failure to request the modification of his legal capacity allowed a person with brain damage, who was single, an immigrant and with no family in this country, to be left in a situation of legal defencelessness. Measures should have been adopted much sooner to allow A.E.R. to exercise his legal capacity with appropriate and effective safeguards to prevent any type of abuse, conflict of interest or undue influence.

The adoption of measures to modify his legal capacity would have prevented A.E.R from being kept in a state of defencelessness with regard to the commitment. With the appropriate measures it is possible that A.E.R. might have “decided for himself” about his commitment, or, at least, express his more-than-valid opinion on the matter. A guardian or, in our opinion, preferably a curator or support figure might have enabled his transfer to another type of home or resource or have questioned the decision to extend the commitment measure, or the decisions made with regard to his benefits. A tutor or curator could have resolved some of the very relevant omissions in this case - such as not having requested that his grade and level of dependency be assessed.

In addition, as mentioned, the interpretation of Article 763 of the LEC in conformity with Article 12 of the Convention would have required adjustments and support mechanisms to be put in place in the adoption of the commitment measure itself. It is possible that the clinical and social situation of A.E.R. initially justified his being admitted to a care centre as he was unable to express his wishes either himself or, it

seems, by means of support. As we have indicated, at the time of the legal examination in order to adopt the measure, an unidentified neighbour was casually present in the hospital ward, but we have no evidence whether she was interviewed to find out about the identity and life of A.E.R. or whether the information she was able provide about him was really taken into account. After this measure was adopted, and given the reasonable expectation that his condition would improve, the legal authorities should have taken the trouble to determine if, with the appropriate support – even informal support – A.E.R. could have expressed his will and preferences in relation to his commitment in the home for the elderly so that they were taken into consideration. According to information from the home and as indicated by the Prosecutor’s Office in Informative Proceedings 14/2011 initiated in October 2011, A.E.R. received visits from friends in the home and therefore had people close to him who were concerned about his situation and who could have acted as natural supports.

Let us not forget that, as we were informed, A.E.R could not be heard at the time of the commitment, but he was not heard afterwards either, when he could communicate, and at no time was he allowed a hearing when the commitment was extended. Neither should we forget that the court has provided no evidence to us that they visited him and nor did the Prosecutor’s Office in almost two years. Thus we consider that a measure has been imposed coercively to restrict A.E.R.’s liberty without asking for his opinion, which is a violation of the safeguards established in Article 12.4 of the Convention, which requires, as indicated above, that the will and preferences of a person be taken into account.

The circumstances of the case reveal, in addition, a major shortcoming of the procedure for modifying legal capacity in Spanish legislation, i.e. the lack of legitimacy of the organisations responsible for defending the rights of people with disabilities. This loophole means that they cannot act effectively in situations where no request has been made by either the family members (in this case because they were not in Spain) or the Prosecutor’s Office. Likewise, the participation of these institutions in adopting commitment measures should be considered.

Yet, in addition, in this case CERMI has witnessed the defence of the rights and interests of A.E.R being generally impeded. In fact, the lack of legal measures in relation to A.E.R.’s legal capacity and his being considered “naturally incapable” did not allow the available legal channels to be implemented. The application of the measure of involuntary commitment also made it difficult – initially – for CERMI to contact A.E.R. since, as mentioned above, the management of the home had said that his phone calls had been restricted by court order, which was not true.

Article 19 of Law 51/2003, of 2 December, on Equality of Opportunities, Non-discrimination and Universal Accessibility provides that “without prejudice to the individual legitimacy of the persons affected, legal persons empowered by law to defend collective legitimate rights and interests may act in proceedings in the name and interest of persons so authorising, in order to render the right to equal opportunities effective, defending their individual rights, the effects of that action resting on said persons.”.

CERMI instigated the intervention of a notary who determined that A.E.R. did not have the legal capacity to provide this authorisation. The interview took place without A.E.R. having any support – which could have been arranged for the purpose – and only the management of the home intervened. Thus, in this case A.E.R.’s “natural capacity” to authorise CERMI to act in his name and interest was not acknowledged, and there was no guardian, curator or legal defender, who could have supported him in giving this authorisation or, although this is not really desirable, give it for him. In any case, it is appropriate to bear in mind that these problems might also have arisen if A.E.R. had had a guardian who had not given consent. It can, therefore, be stated that current legislation acted as a barrier to the proper defence of A.E.R. in this case.

From the above it can be observed that the failure to adopt measures to enable A.E.R to exercise his legal capacity has had a negative effect on his right of access to justice covered under Article 13 of the Convention.

In summary, the involuntary confinement of A.E.R., added to the failure to adopt measures to guarantee the exercise of his legal capacity have resulted in issuing “a blank cheque” with regard to decision making in all the areas of his life (where and who to live with, medical treatment, his food, his space, his clothing, his visits, communications etc.). This situation is in direct conflict with the demands of the Convention and could give rise to possible violations of other rights as shall be seen in the following section.

3.3. Other rights (the right to living independently and being included in the community, the right to choose to be admitted to a residential centre, the right to habilitation and rehabilitation, rights to property, the right to intimacy and privacy, the right to honour, the right of religious freedom, medical treatments).

With regard to the possible violation of other rights it is worth mentioning, firstly, the right to independent living and being included in the community covered under Article 19 of the Convention which is clearly affected by the adoption of the involuntary commitment measure and in particular, because of its duration, and because of the conditions of its implementation. The exercise of this right was also impeded due to the failure to adopt measures to enable the exercise of A.E.R.’s legal capacity.

Article 19 of the Convention obliges States parties to ensure that “Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement” and that “Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community” and that “Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs”.

Again, it needs to be highlighted that the full and effective adaptation of Spanish legislation to the configuration of this right in the Convention requires a modification of the approach – stressing the dimension of promoting autonomy and attending to social

factors – and of some of the provisions contained in Law 13/2006 on the Promotion of Personal Autonomy and Care of People in a Situation of Dependency. And it is also important again to stress the obligation to interpret and apply this legislation in a sense most favourable to the provisions of the Convention.

It appears obvious then, that in this case A.E.R. - who was subjected to a coercive measure which forced his institutionalisation in a particular centre, without his being allowed the necessary support for decision making and the exercise of his legal capacity, and without hearing his opinion – was denied the opportunity to choose his place of residence and where and with whom he lives and he was obliged to live in a particular living arrangement. In the same way, it was made impossible for A.E.R. to access other care and attention services available in the Spanish system. In addition, some decisions taken by the home in this case, restricting visits and calls, or in the bases of their reports, refusing to allow him to leave the centre, might have had a negative impact on his surroundings and his inclusion in the community and have lead to the disruption of some of his personal relationships.

As can be seen from the account of the events of the case, no request was made in over two and a half years to assess A.E.R.’s degree of disability or his level and grade of dependency. This omission caused a great deal of damage to his person and his assets which could have been prevented.

As mentioned, recourse and access to the system for the care of dependency could have instigated a different legal, social and financial development of the case, if this was not possible initially, it could certainly have occurred subsequently.

As has been argued, in the case of A.E.R. it is possible that his situation at the time of his admission to hospital warranted the recourse of involuntary commitment under Article 763 LEC. In any case, and given the force of this measure, mechanisms should be put in place in the care and/or health legislation itself to deal with situations as urgent as that of A.E.R. which are more proportionate than that covered by Article 763 LEC.

Once this urgent situation had been covered by the involuntary commitment measure – which is exceptional and temporary – A.E.R.’s situation should have been corrected by the activation of ordinary mechanisms for promoting personal autonomy and the care of dependency and a situation which should be exceptional should not have become a routine and permanent one.

Law 39/2006 –Article 4.1.g) – recognises the right of people in a situation of dependency to freely decide on their admission to a residential home. At first, it appeared that A.E.R was not in a condition to make this decision, which justified the adoption of the commitment measure. However, given the progress of A.E.R.’s psycho-physical situation – he could communicate, albeit with some difficulty, as CERMI was able to verify – the question arises whether he might not subsequently be able to express his will with the necessary supports, which he was not provided, which could have meant that the commitment became voluntary and the end of his situation of confinement.

“Formal” recognition of his situation of dependency would have enabled A.E.R. access to a variety of benefits or care resources which would have greatly promoted his inclusion and participation in the community. Correcting A.E.R.’s situation and his access to the channels of the dependency care system would have resulted in the preparation of an individual programme including the most appropriate care options for his needs, subject to revision, and designed with his participation (for which, again, support might be needed), by qualified professionals competent in this area.

Given A.E.R.’s clinical and social situation – he does not have family in Spain – it is possible that the most appropriate care option under current dependency care regulation was – at least for a while – to admit him to a residential centre, although it could not be ruled out that his circumstances might evolve in such way as to make other care options viable which did not involve his being institutionalised or which would allow him to be institutionalised in a less restrictive and regulated environment than residential care (which is eventually what occurred).

Moreover, we cannot ignore the fact that A.E.R. had expressed to the people he trusted that he wanted to return to his country and his family; he expressed this to the representatives from CERMI as well. Once the necessary support has been put in place to ensure the appropriate expression of this desire, as long as his clinical condition allows and with the necessary guarantees, his choice regarding where and with whom he lives must be respected in conformity with Article 19 of the Convention.

In any case, it appears obvious to us, as mentioned, that remaining in a residential home for the elderly was not at all the best or most appropriate resource for A.E.R., given his clinical situation and his age, and taking into account the principle of appropriate attention to the basic needs of users to ensure their personal autonomy to the utmost extent and there being centres in his autonomous region which are better suited to his needs. Article 25.2 of Law 39/2006 indicates that residential care service shall be provided in centres which are equipped for the purpose according to the type of dependency, its grade and the intensity of care that the person requires. In addition, looking at regional legislation, questions must be asked as to how a person who is not “elderly” – i.e., sixty five years of age or older – could be admitted to a centre of this type.

In the Decree filing the informative proceedings 14/2011 started in response to the complaint sent by CERMI and the complaint from the Ombudsman, the expressly authorised person from the provincial Prosecutor’s Office claimed to have checked that A.E.R was well and had integrated satisfactorily, the centre’s facilities were appropriate and operating well and informed that the medical officer considered that he was being well cared for, medically and correctly assisted in his daily physiotherapy. Likewise, it was indicated that A.E.R. had made good progress since his commitment and was showing significant improvement. As we indicated earlier, this criterion is clearly contradictory to the report issued by the home in relation to the extensions of the commitment, which stated that his condition remained practically the same as when the measure was adopted. Although the home itself admitted, to vouch for the appropriate treatment he had received, that A.E.R.’s condition had substantially

improved. We do not doubt, in any case, that A.E.R. was helped and cared for in the home for the elderly and also received rehabilitation treatment.

Nevertheless, the above does not preclude the fact that elderly people have specific needs and require different care to that required by a person of 32 with brain damage; it is, therefore, obvious that a home for the elderly was not the most suitable place to treat A.E.R. CERMI’s visit to the home enabled them to clearly ascertain the unsuitability of the facilities and the type of relationship that he had with other users, and the difference between their needs and those of A.E.R. This was a young adult, a little over thirty years of age, living permanently in a centre which he was not allowed to leave and where his contact with the outside was restricted (we shall examine the justification for this later) where the other users are all elderly people, with different support and care needs. This environment could not provide a natural or normalised situation for A.E.R. In our opinion, A.E.R.’s admission to a more specialised centre for his condition, which focussed more on rehabilitation than on attention to care needs, where he could have had contact and form relationships with people of his own age, with a programme of activities adapted to his profile, obviously other than a residential home for the elderly, would have encouraged a swifter recovery and better promoted his autonomy.The principle of appropriately responding to A.E.R.’s basic needs in order to promote his autonomy to the full was not considered when the measure was adopted, or subsequently. As we indicated earlier, although at first, given the shortage of available resources, A.E.R.’s commitment in a home for the elderly could have been justified, he should have been transferred to a more appropriate centre as quickly as possible. However, this was not arranged by any of the agencies involved until CERMI’s intervention in the case and if it had been arranged it would have been hampered although possibly not prevented, by the fact that A.E.R.’s situation of dependency had not been officially recognised.

It could be considered, therefore, that A.E.R. has been given inappropriate service for more than two years, which can reasonably be considered to have had a negative effect on his right to habilitation and rehabilitation, covered under Article 23 of the Convention.

Not having requested the recognition of A.E.R.’s situation of dependency from the start not only resulted in his being placed in a centre which was not appropriate or suitable for his age and circumstances, but also caused him considerable financial damage. In effect, the private home where he was placed arranged a pension for major disability for A.E.R. and asked the judge to authorise the payment of the care home’s monthly bills from the bank account into which the pension was paid by direct debit. Access to the dependency care system would have proved less costly for A.E.R. because the amount paid by the care service user can never exceed a certain percentage of their pension. This circumstance confirms that the authorities involved in this case did not appropriately safeguard the integrity of A.E.R.’s property. If A.E.R.’s degree of disability had been officially recognised, he would have had access to a specific system of social and financial benefits which he was not able to claim.

We understand that the hospital’s social services, in coordination with the general

services of the autonomous region, should have arranged for A.E.R. to enter the care service from the moment it was clear that his accident would result in a situation of dependency – he was admitted to the hospital from 27 September to 9 December 2011. In any event, these arrangements could have been made subsequently and normalised A.E.R.’s situation giving him access to the services and benefits covered under Law 39/2006. Not having recognised his degree of dependency and disability is also relevant because it is evidence that the competent administration of the social services, namely the corresponding Ministry of the autonomous region, was not properly informed about A.E.R.’s situation. If they had been informed and not started to act, the social services could also have been held responsible.

According to applicable regional legislation, one of the responsibilities of a home for the elderly is that of keeping the degree of dependency and the information on the clinical situation of the people in their care updated. In addition, as we have indicated, the owner of the home was acting as the de facto guardian of A.E.R. and should have acted in his best interest and arranged for his situation of dependency to be recognised. The inactivity on the part of the management of the centre where A.E.R. was placed in this regard, could reveal a serious conflict of interests, as we have mentioned, and thus an obvious lack of diligence, if not clear negligence, which could result in liabilities for the damage caused to him. A request for A.E.R.’s grade of dependency could have been arranged in the same way as his disability benefit was arranged. The possibility cannot be ruled out that since this was a private centre – with no places for dependency – they might have been interested in keeping A.E.R. and thus continue to receive payment for his place in the home.

Furthermore, it seems difficult to justify the passivity of the legal bodies in this area as they were fully aware of how the costs of A.E.R.’s place in the home were being paid and the duration of his commitment. We stress that given his situation of involuntary commitment the judge, regardless of the immediate powers of other agents, is the ultimate guarantor of A.E.R.’s rights and the Prosecutor’s Office has particular responsibility in protecting his rights and assets. Again the inactivity of the social services, the management of the home and the legal authorities was impossible to counteract, as A.E.R. had no guardian, curator or support figure to arrange for his grade of dependency and disability to be assessed. To complete the analysis of this case, it needs to be taken into account that more of A.E.R.’s fundamental rights, beyond the limitations imposed by the measure itself, were being restricted while the commitment was being implemented.

With regard to this issue, it is important to point out that the legal authorisations agreeing the commitment of a person only restrict their liberty; in other words, the remaining fundamental rights of the person subject to commitment should not be limited or restricted in their exercise. Like other people who have been deprived of their liberty, people subject to involuntary commitment must be able to exercise all the rights to which they are entitled. This means that people subject to commitment cannot be deprived of other rights such as being able to leave the home for outings or receive visits or have contact with certain people.

These restrictions can occur legally on medical advice but such measures will always

require a new legal ruling. In certain circumstances the commitment order itself can cover these measures; in this case, a deadline needs to be set for them to be reviewed; this deadline does not necessarily need to coincide with the general deadline for reviewing the commitment. These guarantees must be enforced as involuntary commitment, as a health measure and not a punishment, must cause the least possible damage to the rights of the people who are subjected to it. The State must ensure that rights are guaranteed to the full and restricted as little as possible and also ensure that measures are always justified in terms of their necessity, appropriateness and proportionality.

In this case the judge did not establish in the commitment order any limitation to A.E.R.’s visits and phone calls. However as we have indicated in this report, the management of the home, on the first occasion that CERMI tried to contact A.E.R., informed CERMI that his phone calls were restricted by court order, subsequently referring them to the lawyer of the home owner who did not provide information on A.E.R.’s situation. After this process and after the case had appeared in the media, on 4 October D.G.B. informed CERMI that she had been refused entry to the home during the set visiting times. These decisions were not justified by A.E.R.’s psycho-pathology or his line of treatment and had not been authorised by the court or officially reported; although later the court and the Public Prosecution Service were made aware of these events in the complaint filed by CERMI.

Again it needs to be stressed in a situation like that of A.E.R. that, apart from the powers of the social services in monitoring how care homes work, it is the responsibility of the Prosecutor’s Office and the Courts in particular to safeguard the rights of the person subject to commitment.

In the framework of the informative proceedings 14/2011 initiated by the person responsible from the regional Prosecutor’s Office in October 2011, the management of the home claimed that A.E.R. received frequent visits and that his communications and visits were not restricted apart from those of D.G.B.; this restriction was put down to internal rules because of the altercations which she had caused in the centre. In our opinion, the management of the home should have immediately informed the court of this restriction, or have informed them beforehand, to fully ensure A.E.R.’s rights as he was under involuntary commitment and given his difficulty to respond to this restriction. Similarly the informative proceedings initiated by the Prosecutor’s Office should have investigated more thoroughly whether D.G.B.’s visits had in fact been restricted under the internal rules of the home and they should have established the reasons why and any possible justification if appropriate, or, conversely, whether it was because she had reported A.E.R’s situation. This should have been investigated particularly because the ruling of 19 September 2011 only disallows A.E.R. from leaving the centre for outings with D.G.G., it does not make any ruling on her visits to the home, and because altercations provoked by D.G.B. are not documented.

Similarly, perhaps it cannot be ruled out that D.G.B. might have had some spurious interest in defending A.E.R.’s rights, as the court implied in their considerations – although this would have to be appropriately justified in the court’s appraisal considering that D.G.B only asked for measures to be adopted to modify A.E.R.’s legal

capacity and to transfer him to a more appropriate centre for a person of his age where he would not have to pay for his stay and considering that she has been interested in his situation throughout this time – neither can it be ruled out that her visits being refused was a reaction to her complaints (given that the date they were refused coincided with the appearance of the case in the press and CERMI’s phone call to the centre).

Likewise, we understand that the informative proceedings 14/2011 initiated by the Prosecutor’s Office should include some type of explanation of the fact that the management of the home did not allow CERMI telephone contact with A.E.R. arguing that this had been forbidden by the court, which turned out not to be true. This fact, possibly ought to result in action on the part of the legal authority as well.

Furthermore, the court rejected by ruling dated 19 September 2011 the request presented by D.G.B. on 25 May 2011, almost four months earlier, for A.E.R. to be allowed out of the home accompanied by her for a few hours at the weekend. In our opinion the text of the ruling lacks adequate reasoning, it does not express the reasons for denying the request or thoroughly argue its appropriateness in accordance with the abovementioned principles of necessity, appropriateness and proportionality which should have been taken into account as this decision involved restricting the fundamental rights of a person.

According to the information provided us by the court D.G.B.’s request was forwarded to the Public Prosecution Service on 2 June 2011 in order to issue a report; this was done on 28 June indicating the need to take the opinion of the home management into account and therefore a ruling was made on 14 July asking the centre to issue a report in this regard. This report, accompanied by another report from the neurology department – the same report of 20 May 2011 which had been presented in the previous extension of the commitment – was not presented until 8 September and stated that it was not considered appropriate for A.E.R. to leave the centre since his symptoms had not improved significantly. Based on this information, which is not expressly included in the text of the ruling and which therefore we do not consider sufficiently reasoned, the court agreed not to grant D.G.B.’s request. Again it is appropriate to highlight that the consideration that it was A.E.R.’s lack of improvement which justified the negative report in relation to the authorisation of the outings from the centre, contradicts other statements made by the home and other agents who assessed his progress as very positive. Likewise, it is appropriate to highlight that if at that time there had been any suspicion as to the intentions of D.G.B. or any problem under the internal rules of the home this should have been mentioned in their report requesting or at least informing the judge of their intention to forbid her visits. It is also important to bear in mind that the answer from the home on 8 September 2011 was given after D.G.B. had reported A.E.R.’s situation to CERMI.

From photographs taken by D.G.B. we saw that A.E.R.’s clothes had been marked with the word “moro” (moor), this is a term with clearly disrespectful and pejorative connotations. CERMI sent these photographs to the person in charge of the case at the regional Prosecutor’s Office who has not included a reference to this action in the decree filing the informative proceedings initiated in October 2011 although, from the

assessment of the court, it seems that no racist or xenophobic intent was perceived in this behaviour.

Both this treatment and the restriction of the visits and calls, if demonstrated as unjustified, would imply a violation of the right to privacy contained in Article 22 of the Convention which sets out that “1. No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks. 2. States Parties shall protect the privacy of personal, health and rehabilitation information of persons with disabilities on an equal basis with others”.

Furthermore, although we have not been able to confirm whether it is true – the home deny this -, D.G.B. along with some of the workers and users of the home insist that A.E.R. had been given foods which are forbidden under his religion which would constitute an infringement of the right to religious freedom of Article 16 of the Spanish Constitution. D.G.B. stated that the situation was resolved after her complaint to the management of the home.

On the other hand, it appears that A.E.R’s situation allows for the doctors and authorities of the home to be in charge of his medical treatment.

In the application of 763 LEC as a protection, which we advocate, and in the future reform of this regulation, special attention should be paid to medical treatment. The same decision which agrees an admission should precisely detail the medical or care treatment to be provided, its method, the time it is needed and the mechanism to monitor it and the doctors’ obligation to provide information.

In this case, then, also in relation to medical treatment, support should have been arranged to enable the provision of consent and attempts should have been made to take A.E.R.’s wishes into account, given his progress. The appointment of a guardian or curator would also have influenced decisions on his treatment.

4. DEFENCE STRATEGIES AND MECHANISMS FOR DEMANDING POSSIBLE ACCOUNTABILITY.

In our judgement, it can be gathered from the facts of the case that all the relevant agents adopted a care and welfare approach which was geared at ensuring A.E.R. sufficient care but not so much at ensuring the full exercise of his rights in conformity with the Convention. Considering A.E.R. to be receiving appropriate care and medical treatment in the care home always took priority over other considerations. In this context, an integral analysis and approach to A.E.R.’s situation should have been performed.

Similarly, in our opinion, the agents involved in the case, once the initial emergency care situation had been resolved, maintained a rather inactive stance towards upholding A.E.R.’S rights – evidenced by their delay in putting into place support for

decision making, by not allowing him a hearing in the extensions to his commitment and by not promoting a change of centre or assessing his level and grade of dependency and disability – confining themselves to routine and passive monitoring of the case without ensuring the effective protection of A.E.R.’s individual and property rights and only taking action in some areas as a consequence of the case having been reported.

The case has certainly been marked by the scarcity of available resources to meet A.E.R.’s needs and possibly also by the shortage of measures and the work overload of the social services and justice administration which might have hampered better monitoring of the case. In any case, these circumstances cannot justify the extremely vulnerable situation that A.E.R. was placed in, for more than two and a half years and neither can the damage this caused, although unintentional, be overlooked.

One of the problems which could arise in a case like this in implementing defence measures and demanding accountability, if appropriate, is that the condition of the person prevents his using measures that he would have to instigate himself or through his representative. This occurs because, as we have indicated, on the one hand, his “natural legal capacity” has not been recognised and, on the other, he has not been awarded a guardian, curator or legal defender to act on his behalf, or offer him support (which would be the most desirable scenario) in starting these actions.

One of the defence mechanisms covered under Spanish legislation to question commitment situations is that of an appeal or even a writ of habeas corpus. Instruments for demanding accountability include mechanisms for complaining before the governing and/or monitoring bodies of public authorities or even a claim for damages from the State. There is also the possibility of filing a complaint with the Ombudsman.

It needs to be clarified that the appropriateness of some resources and determining concrete accountability and its consequences would doubtless require much more exhaustive investigation than has been covered in this report and might not be accepted by the corresponding authorities. In any case, it is not our intention to propose penalties but we do consider it appropriate to highlight all the available reaction mechanisms if questions were to be raised as to the actions of the agents involved in the case, which should be assessed in light of the ruling of the Constitutional Court of 2 July 2012.

A general outline of each of these mechanisms is given below.

Appeal

Paragraph 3 of Article 763 states “In any event, any decision the court may take with regard to the hospitalisation shall be subject to appeal”. In other words, there is the possibility of appealing against the decision which agrees both the authorisation and the ratification of the commitment. In this case, all the tests legally required for the first instance must be performed again for the second. This appeal will not suspend a commitment, or one which has already been carried out or one which has been

authorised and it will take place anyway.

Although Article 763 does not specify this, logically, an appeal for cassation can be put before the Supreme Court even more so since this type of process principally concerns the fundamental right to liberty of the person.

Likewise there is also the possibility of appealing the decision on extending the commitment measure.

Habeas Corpus

As we have maintained on several occasions throughout this text and as confirmed by the Constitutional Court in their ruling 132/2010, a commitment is a restriction of the fundamental right to liberty. The institution of Habeas Corpus is precisely one of the techniques for the protection of the right to individual freedom which has been shown to be a particularly suitable system to safeguard individual freedom against the possible arbitrariness of the public authorities.

As the law itself which governs the Habeas Corpus procedure indicates, its intention is to “establish efficient and swift remedies for the possible detention of a person which has not been legally justified, or which has taken place under unlawful conditions. Consequently, Habeas Corpus is established as the appearance of the detainee before a Judge (…)”.

Thus, in the event that a commitment had not respected the requirements of Article 763 this would constitute unlawful deprivation of liberty and the same thing would apply in the event that detainees “had not been accorded the rights which the Constitution and Procedural Laws uphold for every detained person” .

This procedure would imply the obligation for immediate legal referral. In other words, the person subject to involuntary commitment whose rights have been violated must be brought before the investigating judge of the location.The people who can initiate this procedure, in addition to the detainee (which would be difficult in situations such as this case), are their spouses or persons in equivalent relationships with them, their descendants, ascendants or siblings and, where appropriate in respect of minors and incapacitated persons, their legal representativesor, indeed, by the Ombudsman and the Public Prosecution Service and the competent judge (i.e. the judge in the location of the person subject to commitment).

The procedure can be initiated in writing or in person, the intervention of a lawyer or barrister is not necessary. Logically, initiating the procedure will vary if it is ex officio .

Once the Habeas Corpus request has been presented, the governing body, their agent or public official, is obliged to inform the competent judge of this request immediately. Once this Habeas Corpus request has been instigated, and in accordance with legislation, the judge shall examine the requirements for it to be processed and given to the Public Prosecution Service. They shall agree for the procedure to start by means of a court order, or shall reject the request as inappropriate. In any case the Public

Prosecution Service shall be informed of this order. There can be no appeal against any decision ruled in either case..

Inspection of the Prosecutor’s office

According to the Public Prosecution Service’s Organic Statute, their fundamental mission is the promotion of the justice system in the defence of the rule of law, of citizens’ rights and of the public interest as safeguarded by the Law, and to monitor the independence of the courts, securing before them the satisfaction of social interest. This standard also states that the Public Prosecution Service can act ex officio or at the request of interested parties. In terms of involuntary commitments and general issues, the Public Prosecution Service can be considered the champion of the fundamental rights of people with disabilities and the sick.

The precise reason for communicating the commitment to the Public Prosecutor, in addition to monitoring that the rights of the committed person are respected, is so that the Prosecutor can start the procedure for modifying legal capacity to prevent a person, who might have restricted legal capacity but who does not have a guardian or curator to help him to exercise this capacity, from being unprotected before the law. This situation of being unprotected before the law due to inaction on the part of the Prosecutor processing the procedure could constitute a serious offence which is covered in the Organic Statute of the Public Prosecution Service itself in the precept which establishes that unjustified delay in the conduct of the affairs known to the Prosecutor in the execution of his functions, otherwise constitutes a very serious offence. Equally it can be assumed that the Prosecutor in his function as guarantor of rights should ensure that people who have been committed have access to the dependency care system and should ensure the general protection of their rights.

The person affected or the person representing them would have the right to formulate complaints, claims and suggestions in relation to the inappropriate functioning of the justice administration and to receive a response as quickly as possible. As a consequence, a complaint could be filed before the inspection system of the State Prosecutor’s Office.

Complaint to the General Council of the Judiciary

Like the Public Prosecution Service, the Judiciary also have a system for complaints and claims for citizens which could be used to question the action of a judge, regardless of the request for patrimonial responsibility of the State. In accordance with the procedure established in Article 423 of the Organic Law of the Judiciary, when a complaint is lodged with regard to the action of judges and magistrates, this brings about an investigation by the Inspection Service of the General Council of the Judiciary.

Patrimonial Responsibility of the State

It could be understood that the situation of a person who had been under involuntary commitment for almost three years with no measures to enable him to exercise his legal capacity and who had been covering the costs deriving from his commitment

himself, implies irregularities in the administration of justice which resulted in damage. The Constitution provides that damages caused by judicial errors as well as those arising from irregularities in the administration of justice, shall be subject to compensation by the State. The Organic Law of the Judiciary develops the responsibility of the State for the functioning of the administration of justice in its Article 292 and following articles. The law establishes that damages caused by judicial error or as a consequence of irregularities in the administration of justice shall give the injured parties the right to claim compensation from the State.

In this context, therefore, a claim for compensation could be made from the State; to do this, the damage would have to be financially evaluated on an individual basis. The request for compensation would have to be sent to the Ministry of Justice, and be processed in accordance with the regulatory standards of the patrimonial responsibility of the State.

Responsibility of the care centre as de facto guardian

The responsibility of the residential home as de facto guardian for the actions or omissions which acted to the detriment of their ward - such as not processing the recognition of the situation of dependency, or restricting certain rights if considered unjustified – could fall under the regime of extra-contractual responsibility established in Article 1902 of the Civil Code. This precept states “The person who, as a result of an action or an omission causes damage to another by his fault or negligence shall be obliged to repair the damage caused”. The Supreme Court has accepted the extra-contractual responsibility of centres for the care of people with mental disabilities and psychiatric centres based on this precept. In these cases, the Supreme Court required the existence of damage, the causal link with the behaviour of the centre and the existence of guilt or negligence to be demonstrated.

The possible accountability of the social services of the autonomous region could also be taken into consideration, if, being aware of the situation of A.E.R., they had not taken action (which from the documentation on the case and the information gathered by CERMI does not seem to have occurred).

• PROPOSALS FOR REFORM.

The work that we have undertaken in A.E.R.’s case in addition to highlighting the existence of a possible violation of rights reveals some of the contradictions and loopholes in Spanish Legislation in light of the demands of the Convention.

To conclude this report we shall briefly refer in a general sense to some reforms that we consider necessary to Spanish legislation which would offer a better response to cases like that of A.E.R. to fully comply with the CRPD.

Involuntary commitment on the grounds of mental disorder as a special measure involving deprivation of liberty affecting people with disabilities should be eliminated. The situations in which a person may be confined without their consent, which in any event should be defined in neutral terms in relation to disability, must be

addressed in the relevant specialist legislation – health, welfare - in accordance with the basic principles which apply to the type of legislation. This legislation should focus on the general circumstances which might justify commitment, and not on a purely personal condition such as a mental disorder. Current legislation implies discrimination on the grounds of disability, which is expressly prohibited by the Convention and Article 14 of our Constitution. Only when a person is in an emergency situation where there is the risk of serious and irreparable damage to the person himself or herself or third parties, may involuntary commitment be authorised. Restrictions of liberty must only be maintained for an appropriate length of time.

In any event, the denomination “internamiento” (internment) should be discarded in this legislation in favour of “ingreso” (admission), the former being far more stigmatising and clearly containing a punitive component.

Irrespective of the regulatory framework, it is essential to bear in mind that confining a person without their consent affects the fundamental right to personal freedom of Article 17.1 of the Spanish Constitution (CE) and must be compulsorily regulated by an organic law.

Although legislation on involuntary admission can cover extremely urgent care need situations, these measures can never become integral care or routine measures. Care need situations must be handled in conformity with the principles contained in the pertinent legislation.

The people affected by these measures must always be heard and have all the formal and informal support mechanisms available to them in order to enable them to express their opinion and understand their situation. In this regard, it is essential for Spanish legislation to be reformed to adapt to Article 12 of the Convention. The decision on involuntary admission must take into account the will of the person whose liberty is to be restricted and the opinion of his close circle, his family, partner or friends who, depending on the personal circumstances of each, might be able to convey the desires and preferences of the individual concerned. People must be treated according to the principle of the patient’s right to autonomy and the right to freely decide their admission to a residential or treatment centre. The relevant supports should be available for this decision.

In cases where involuntary admission can be justified, according to the aforementioned criteria, special attention should be paid to the question of medical treatment, establishing specific instructions in the decision for the admission, which are subject to monitoring.

Legislation must not merely specify the procedure; it must be integral to provide guarantees, covering the different scenarios which might result in the need for involuntary admission and the fact that the circumstances might require different procedures or guarantees.

As a restriction of a fundamental right, it should be mandatory for the legal ruling authorising the involuntary admission to include the explicit reasoning behind the decision reinforced by the criteria of necessity, appropriateness and proportionality, at least. These criteria must be taken into account in the restriction of any other right.

Legal assistance for the person whose involuntary admission is being considered should

be compulsory. At the moment this assistance is a possibility, but on many occasions the people who are being subjected to this procedure are not aware of this right, are not in a position to claim it or are not expressly informed about this possibility. Thus to comply effectively with Article 13 of the Convention, the provision of legal assistance to the person against whom this procedure is directed should be compulsory; the Justice Ministry, the autonomous regions with transferred powers in the area of justice and the law societies, should consider the need for a specific “duty rota” for people with disabilities, which already applies for example in the areas of gender-based violence, immigration status or imprisonment.

Reduced deadlines should be set and effective follow-up mechanisms should be established to monitor the measure. Deadlines should be set ad hoc depending on the personal characteristics and circumstances of each person admitted. Given the relevance of the right which has been affected, legal controls must include hearing the person affected – with the appropriate support – not merely receiving reports. In terms of content, the opinion of people who are linked de facto to the person should be heard and an alternative report required (from an independent medical expert, a specialist social worker or a body which specialises in persons with disabilities) depending on the case.

In addition, different forms of bringing the involuntary admission to an end should be provided, beyond medical discharge, bearing in mind the possibility, amongst others, of modifying the nature of the commitment from involuntary to voluntary.

The Prosecutors in charge of the protection of people with disabilities need to periodically inspect centres, residential homes or sheltered flats, regularly monitoring each resident’s stay; especially of those who have been subject to involuntary admission, thus fulfilling the power-duty attributed to the Public Prosecutor Service under Article 4.2 of the Public Prosecutor Service’s Organic Statute to “visit centres or establishments of detention, imprisonment or confinement of any type in our respective territory, examine the reports on the inmates and request as much information as deemed necessary”.

Bodies or associations specialising in the protection of persons with disabilities should play a more active role in proceedings; especially in cases where the person with a disability is in a particularly vulnerable situation. They should be heard in the procedures for involuntary commitment, in their monitoring and even instigate proceedings to complain about commitments. All of this with the aim of adding further guarantees to the process. Likewise, they should be entitled to initiate and participate in procedures to modify legal capacity. In general, to make their work in defending the rights and interest of people with disabilities more effective, the sense of Article 19 of Law 51/2003, of 2 December (LIONDAU) needs to be reconsidered to enable them to act in situations where the person with a disability does not have natural capacity, or a guardian or curator or, if they do have either of the latter, when they fail to uphold their rights.

Protection measures need to be regulated during the time of commitment. These measures need to be taken on an individual basis; they must take into account the protection of the exercise of the other rights of the person, and their property and their personal circumstances during the admission. When the admission affects a person with a disability, accessibility and reasonable accommodation measures must be guaranteed in accordance with Article 14.2 of the Convention.

In this context, an integral law should be approved for the protection of the rights of people who have been placed into institutions.

In addition, the paradigm shift from a medical model to a social model and from a care perspective to a human rights perspective that the Convention implies in the way disability is handled has to be propagated through these reforms, and specialist training needs have to be provided on the new model for all professionals whose work might involve people with disabilities. The failure to adopt this model is, in our opinion, one of the factors which have clearly contributed to the particularly vulnerable position in which A.E.R. was placed.

In developing this clinic, from the Bartolomé de las Casas Institute of Human Rights, we have attempted to contribute towards propagating the vision of disability contained in the Convention.

• A.E.R.’S CURRENT SITUATION

As has been emphasised throughout this report, CERMI’s intervention in the case without doubt served to expedite the regularisation of A.E.R’s civil situation and in addition, resulted in his transfer to a more appropriate centre for his needs.

On 1 October 2012 a ruling was passed in relation to the procedure for modifying A.E.R.’s legal capacity. This ruling declared A.E.R.’s total incapacity and agreed to nominate a tutelary foundation in the area as his guardian. The guardian assumed duties on 26 November 2012. A.E.R. has lived in a sheltered apartment in the same city since 8 January 2013, which is the property of the foundation acting as his guardian. A sheltered apartment seems more appropriate for a person with A.E.R.’s level of autonomy, age and support needs. The facilities and the rehabilitation and work activities which A.E.R. undertakes and the cohabitation system, which is much less restrictive and far more open than that of the residential home, are completely suitable for his situation and needs. We have been able to establish from the arrangements made by CERMI and from communication with the people closest to A.E.R. that he has completely adapted to his new way of living. CERMI was informed that arrangements are being made to determine whether it is A.E.R.’s wish to return to his family in Morocco permanently and, if possible, with the due guarantees.

Although, as we have indicated, we would have considered it preferable in accordance with the Convention for A.E.R not to have been completely incapacitated, and for a curator to have been appointed rather than a guardian, and we would have considered it more appropriate to have questioned his commitment in a centre for the elderly and have arranged for his transfer elsewhere the moment that a legal defender was appointed, without unnecessarily prolonging his stay in an inappropriate place and exposing him to possible violations of his rights, the fact is that A.E.R. can now exercise his legal capacity and lives in an environment which is much more suitable for the promotion of his independence and autonomy.