Committee on the Rights of Persons with Disabilities

Concluding observations on the initial report of Argentina as approved by the Committee at its eighth session (17–28 September 2012)

1.The Committee considered the initial report of Argentina (CRPD/C/ARG/1) at its 79th and 80th meetings, held on 19 and 20 September 2012, and adopted the following concluding observations at its 91st meeting, held on 27 September 2012.

I.Introduction

2.The Committee wishes to express its appreciation to the State party for its initial report, which was prepared in accordance with the Committee’s reporting guidelines (CRPD/C/2/3), and for its written replies to the list of issues (CRPD/C/ARG/Q/1/Add.1).

3.The Committee also expresses its appreciation for the constructive dialogue held between the delegation and the members of the Committee and for the presence of the delegation from the State party.

II.Positive aspects

4.The Committee takes note with satisfaction of the efforts made by the State party to implement the Convention through the adoption of laws, plans and programmes, including the following:

(a)Adoption of Act No. 26571 (2009) on the democratization of political representation, transparency and electoral equity;

(b)Adoption of Act No. 26522 (2009) on audiovisual communication services;

(c)Creation of the Disabilities and Occupational Integration Unit, which is attached to the Supreme Court (December 2010), and a national programme for the assistance of persons with disabilities in their dealings with the bodies responsible for the administration of justice (Decree No. 1375/2011);

(d)Establishment of the Health and Disabilities Technology Centre.

III.Principal areas of concern and recommendations

A.General principles and obligations (arts. 1–4)

5.The Committee notes with concern that, despite the steps taken to align the domestic legal system with the Convention, the former continues to exhibit major inconsistencies with the principles and requirements of the Convention, especially as regards equal recognition of persons with disabilities before the law. It also notes with concern that, because not all of the State party’s provincial legislation is aligned with the Convention, disparities arise in the approach taken at the local level to the rights of persons with disabilities and to the effective exercise of those rights.

6. The Committee urges the State party to take the necessary steps to bring all its federal, provincial and local legislation into line with the Convention and to ensure the effective participation of organizations representing persons with disabilities in this process in accordance with article 4, paragraph 3, of the Convention.

7.The Committee is concerned at the absence of a coherent, overall strategy for the implementation of the human rights model established in the Convention that provides for affirmative action measures to achieve de facto and de jure equality for persons with disabilities and for giving full effect, at all levels, to the principles and requirements set out in the Convention.

8. The Committee urges the State party to pursue a broad and comprehensive strategy to realize all the rights set out in the Convention, taking due account of the human rights model of disability. The Committee also recommends that the State party take effective steps to ensure that persons with disabilities — including children and women with disabilities — are actively involved in planning, implementing, monitoring and evaluating this strategy.

9.The Committee acknowledges the progress represented by the introduction of the Single Disability Certificate. However, it notes with concern that the certificate has not yet been rolled out nationwide and that there are disparities in the criteria used for its issuance. The Committee is also concerned that some provinces are not yet in compliance with Act No. 24.901 on basic services for persons with disabilities.

10. The Committee urges the State party to take steps to guarantee the effective implementation of the Single Disability Certificate throughout the country and to standardize the criteria used by the National Rehabilitation Service and the provincial evaluation boards for its issuance. It also urges the State party to ensure that all provinces are in compliance with Act. No. 24.901.

B.Specific rights (arts. 5–30)

Equality and non-discrimination (art. 5)

11.The Committee notes with concern that neither the concept of reasonable accommodation nor recognition that the denial of such accommodation is a form of discrimination are explicitly included in anti-discrimination laws or in the laws on, among other things, employment, health and education. It also wishes to express its concern at the lack of simplified judicial and administrative remedies that would allow persons with disabilities to report cases of discrimination on grounds of disability. The Committee is concerned at the lack of information on measures and actions designed to address the specific situations of persons with disabilities who belong to indigenous peoples and of deaf-blind persons.

12. The Committee urges the State party to incorporate the concept of reasonable accommodation into its anti-discrimination legislation and to ensure that the relevant laws and regulations define the denial of reasonable accommodation as a form of discrimination on grounds of disability. The Committee recommends that the State party take steps to simplify existing judicial and administrative remedies in order to enable persons with disabilities to report acts of discrimination to which they have been subjected. The Committee also recommends that the State party devote special attention to the development of policies and programmes for persons with disabilities who belong to indigenous peoples and for deaf-blind persons with a view to putting an end to the many forms of discrimination to which these persons may be subjected.

Women with disabilities (art. 6)

13.The Committee takes note with concern of the unconvincing measures taken by the State party to address the specific needs of women and girls with disabilities, and it regrets the lack of proper protection for their rights (see CEDAW/C/ARG/CO/6, paras. 43 and 44). It is particularly concerned that there is no strategy for mainstreaming gender and disability issues into legislation and programmes focusing on women, including those that deal with violence, access to justice, sexual and reproductive rights, and access to the labour market.

14. The Committee urges the State party to adopt a strategy for guaranteeing full protection and enjoyment of the rights of women and girls with disabilities, while also ensuring their effective participation in decision-making processes. In addition, the Committee recommends that the State party incorporate a disability perspective into all gender-equality policies and programmes, thereby guaranteeing the full and effective participation of women with disabilities on the same footing as other women.

Children with disabilities (art. 7)

15.The Committee notes with concern that Act No. 26.061 on the comprehensive protection of the rights of children and adolescents contains no provisions specifically on children with disabilities. It is also concerned at the lack of information on the situation of children with disabilities in the State party.

16. The Committee recommends that the State party should, as a priority, incorporate a disability perspective into Act No. 26.061 and the system for the comprehensive protection of children ’ s and adolescents ’ rights. The Committee urges the State party to invest the greatest possible amount of available resources in ending discrimination against children with disabilities and to ensure that they are covered by health insurance schemes and receive the services and benefits, such as pensions and housing, to which they are entitled.

Accessibility (art. 9)

17.The Committee takes note of the State party’s current legislation on accessibility for persons with disabilities. However, it notes with concern that, despite the establishment of the Advisory and Monitoring Committee, the State party does not have effective mechanisms for overseeing and evaluating compliance with accessibility legislation in all the areas covered by the Convention or for regulating and monitoring the imposition of sanctions for non-compliance. The Committee is also concerned about the challenge posed by the State party’s federal structure in terms of the achievement of full accessibility for all persons with disabilities in every province and municipality in its territory.

18. The Committee recommends that the State party establish effective mechanisms for monitoring and evaluating compliance with accessibility laws in the State party and that it take the necessary measures to facilitate the alignment of the relevant federal and provincial legislation with the Convention and the development and implementation of accessibility plans. The Committee also urges the State party to ensure that private entities take due account of all aspects of accessibility for persons with disabilities.

Equal recognition before the law (art. 12)

19.The Committee is deeply concerned about the inconsistencies observed in both the laws already in force and bills that are now being considered in the State party which are based, or continue to be based, on a substitute decision-making model that overrides the wishes of the persons concerned, which clearly runs counter to article 12 of the Convention. The Committee is also concerned at the reluctance of some justice officials to apply the rules that set limits on a court’s discretion in restricting the legal capacity of persons with disabilities.

20. The Committee urges the State party to launch an immediate review of all current legislation that is based on a substitute decision-making model that deprives persons with disabilities of their legal capacity. At the same time, the Committee urges the State party to take steps to adopt laws and policies that replace the substitute decision-making system with a supported decision-making model that upholds the autonomy, wishes and preferences of the persons concerned. In addition, the Committee recommends that training workshops on the human rights model of disability be organized for judges to encourage them to adopt the supported decision-making system instead of granting guardianships or trusteeships.

21.The Committee expresses concern at the inconsistencies existing between the proposal for the amendment and standardization of the Civil and Commercial Code and the Convention, as the concept of judicial prohibition would be retained and judges would have complete discretion to appoint a trustee or decide on what decision-making support tools are needed by persons with disabilities.

22. The Committee urges the State party to ensure that the concept of judicial prohibition does not figure in the proposal for the amendment and standardization of the Civil and Commercial Code and to guarantee the effective participation in the review process of organizations representing persons with disabilities.

Liberty and security of the person (art. 14)

23.The Committee notes with concern that involuntary long-term committal is still common in the State party, despite the fact that deinstitutionalization strategies have been adopted and the National Mental Health Act (Act No. 26.657) is based on the human rights model of disability.

24. The Committee urges the State party to implement the deinstitutionalization strategies that it has adopted in an effective manner and to develop and implement mental health plans based on the human rights model of disability, along with effective measures to promote the deinstitutionalization of persons with disabilities.

25.The Committee is concerned that, when a person with a psychosocial or intellectual disability is declared to be exempt from criminal responsibility in criminal proceedings, due process guarantees are not upheld and the person is immediately deprived of his or her liberty without even having been shown to be linked to the event in question.

26. The Committee requests the State party to modify its federal and provincial criminal laws so that decisions regarding the application of security measures to persons found to be exempt from criminal responsibility are taken only after due process guarantees concerning the right to a defence and the right to the assistance of a lawyer, including any adjustments in the proceedings that may be necessary in order to guarantee the exercise of such rights, have been upheld.

Freedom from torture (art. 15)

27.The Committee notes with concern that Senate approval of the bill that would create a national mechanism for the prevention of torture has been delayed.

28. The Committee urges the State party to immediately approve the bill on the creation of a national mechanism for the prevention of torture so that institutionalized persons with disabilities can be monitored and protected from actions that may constitute acts of torture or other forms of cruel, inhuman or degrading treatment or punishment.

Freedom from exploitation, violence and abuse (art. 16)

29.The Committee notes with concern that neither Act No. 26.485 on comprehensive protection and the prevention, punishment and elimination of violence against women nor Act No. 26.061 on the comprehensive protection of the rights of children and adolescents takes account of the specific situation of women with disabilities and children with disabilities, respectively. The Committee is also concerned about the lack of protection against violence and abuse for institutionalized persons with disabilities.

30. The Committee urges the State party to guarantee protection for women with disabilities and children with disabilities in, respectively, the revised versions of Act No. 26.485 and Act. No. 26.061 and their implementing regulations. It also urges the State party to incorporate a disability perspective into policies and programmes developed on the basis of these acts. In addition, it recommends that the State party draw up appropriate guidelines for the prevention of violence against persons with disabilities who are institutionalized. The Committee also recommends that the State party collect data and information on violence and abuse against persons with disabilities, paying particular attention to women, children and persons who are institutionalized. To that end, the State party should, inter alia, establish institutional mechanisms for the early detection of situations in which violence may occur, diligently investigate allegations of violent acts and make any adjustments in procedures that may be needed so that victims can testify and those responsible can be prosecuted.

Protecting the integrity of the person (art. 17)

31.The Committee regrets that, in cases where a woman with disabilities is under guardianship, her legal representative may give consent for a legal abortion on her behalf. It is likewise concerned that persons with disabilities are being sterilized without their free and informed consent.

32. The Committee recommends that the State party amend article 86 of its Criminal Code and article 3 of Contraceptive Surgery Act No. 26.130 so that they will be in accordance with the Convention and take steps to provide the necessary support to women under guardianship or trusteeship to ensure that the women themselves are the ones who give their informed consent for a legal abortion or for sterilization.

Living independently (art. 19)

33.The Committee regrets that the State party’s Support Service for Independent Living (SAVA) is not yet operational, and it is concerned that the available resources and services are of insufficient quality and quantity to guarantee the right of persons with disabilities to live independently and to be included in the community.

34. The Committee urges the State party to ensure that the Support Service for Independent Living (SAVA) becomes operational as soon as possible and to develop and implement comprehensive programmes that will enable persons with disabilities to have access to a wide range of in-home, residential, community-based and other rehabilitation services and to freely choose where and how to live.

Respect for home and the family (art. 23)

35.The Committee notes with concern that the right to form a family is denied to some persons with disabilities, especially those declared “insane” or “lacking legal capacity”, in accordance with article 309 of the State party’s Civil Code.

36. The Committee urges the State party to amend the Civil Code to bring it into line with article 12 and article 23, paragraph 1 (b), of the Convention and to make support services to assist with the demands of parenthood available to persons with disabilities who require them.

Education (art. 24)

37.The Committee notes that the legal framework regulating education in the State party expressly recognizes the principle of inclusive education (Act No. 26.206, art. 11). However, it is concerned that the implementation of this principle is limited, in practice, by a failure to tailor programmes and curricula to the needs of pupils with disabilities and by the prevalence of all sorts of barriers that prevent persons with disabilities from accessing the educational system without discrimination and on an equal footing with other students. The Committee is deeply concerned about the high number of children with disabilities who attend special schools and about the lack of educational resource centres that support the effective inclusion of students with disabilities.

38. The Committee recommends that the State party develop a comprehensive State education policy that guarantees the right to inclusive education and allocates sufficient budgetary resources to ensure progress towards the establishment of an education system that includes students with disabilities. The Committee also urges the State party to intensify its efforts to ensure that all children with disabilities receive a full compulsory education as established by the State party, while devoting particular attention to indigenous peoples and other rural communities. It likewise urges the State party to take the necessary steps to ensure that pupils with disabilities who attend special schools are enrolled in inclusive schools and to offer reasonable adjustments for students with disabilities within the general education system.

Health (art. 25)

39.The Committee is concerned about the systemic barriers that make it impossible for persons with disabilities to access health services in the State party. These include physical barriers, a dearth of accessible materials, a lack of health-care professionals trained in the human rights model of disability and restrictions on the exercise of legal capacity that exclude persons with disabilities from taking decisions concerning their own treatment.

40. The Committee recommends that the State party develop comprehensive health-care programmes that specifically make provision for persons with disabilities and ensure that they have access to habilitation and rehabilitation health services. It urges the State party to allocate budgetary resources and provide training for health personnel in order to effectively realize the right to health of persons with disabilities, while also ensuring that hospitals and health centres are accessible to persons with disabilities.

41.The Committee regrets that the effective implementation of the National Mental Health Act (Act No. 26.657) is under threat because its implementing regulations have not yet been adopted and because the make-up of its review body has yet to be agreed upon. It also regrets the lack of clear-cut mechanisms for ensuring that persons with disabilities give their free and informed consent for any type of medical treatment before it is administered.

42. The Committee urges the State party to adopt the implementing regulations for the National Mental Health Act (Act No. 26.657) as soon as possible, to establish its review body, to strengthen the network of community mental health services and to improve coordination between these services and inclusive employment, education and housing mechanisms in order to guarantee the effective implementation of the National Mental Health Act. The Committee also recommends that the State party adopt protocols for ensuring that all persons with disabilities give their free and informed consent for any type of medical treatment before it is administered.

Work and employment (art. 27)

43.The Committee takes note of the labour law that establishes a minimum quota of 4 per cent for the employment of persons with disabilities in the public sector (Act No. 25.689) and of the various employment programmes for persons with disabilities that have been developed within the public sector. However, the Committee notes with concern that there is a lack of the disaggregated data (by, inter alia, sex, age, type of disability and geographic location) needed to assess compliance with this quota at the national and provincial levels. The Committee is also concerned about the cultural barriers and prejudices that hinder persons with disabilities from entering the labour market, particularly in the private sector, despite the existence of tax incentives for employers. It is also disturbed about discrimination against women with disabilities in the realm of employment.

44. The Committee urges the State party to develop a public policy to promote the inclusion of persons with disabilities in the labour market through, for example, the launch of awareness-raising campaigns targeting the private sector and the public at large which are designed to break down cultural barriers and prejudices against persons with disabilities, the implementation of reasonable adjustments in order to ensure that persons with disabilities in need of such adjustments can participate in the labour market, and the development of training and self-employment programmes. The Committee recommends that the State party reinforce its measures for monitoring and certifying compliance with the employment quota for persons with disabilities in the public sector. It also recommends that the State party undertake the systematic collection of disaggregated data as a basis for a proper assessment of compliance with the employment quota at the national and provincial levels.

Adequate standard of living and social protection (art. 28)

45.The Committee notes with concern that provisions in the State party’s laws on non-contributory pensions (including the requirement set out in Regulatory Decree No. 432/97 and the eligibility requirement for a welfare pension based on the presence of a disability established in Act No. 18.910) discriminate, either directly or indirectly, against persons with disabilities. The Committee is also concerned about the unequal treatment of migrant workers with disabilities and disabled children of migrant workers in terms of access to social protection measures, such as disability pensions, health care, rehabilitation services and housing.

46. The Committee urges the State party to review its social security legislation and to reformulate the provisions that prevent persons with disabilities, including migrant workers and disabled children of migrant workers, from having equal access to social protection in accordance with article 28 of the Convention.

Participation in political and public life (art. 29)

47.The Committee would like to express its recognition of the fact that the State party has repealed the provisions in its Electoral Code that barred deaf-mute persons who do not know how to communicate in writing and persons with psychosocial or intellectual disabilities who have been interned in public institutions from exercising their right to vote. Nevertheless, the Committee remains concerned by:

(a)The fact that the amendments to the Electoral Code have not included the elimination of the provision whereby persons who have been declared legally incompetent by a court of law are barred from exercising their right to vote;

(b)The lack of appropriate measures for ensuring that institutionalized persons with disabilities have access to the polls and can leave the institutions in question in order to vote.

48. The Committee recommends that the State party:

(a) Review the Electoral Code and introduce the necessary amendments to bring it into line with the standards set forth in the Convention, particularly with respect to legal capacity and the exercise of the right to vote on an equal basis;

(b) Pursue its efforts to ensure that institutionalized persons with disabilities have access to the polls by, for example, devising and implementing a national plan for ensuring that people are able to exercise their right to participation in political life (CRPD/C/ARG/Q/1/Add.1, para . 249) or other alternative solutions.

C.Specific obligations (arts. 31–33)

Statistics and data collection (art. 31)

49.The Committee would like to express its recognition of the State party for the work it has begun in order to conduct the second national disability survey and to underscore the importance of compiling up-to-date data which will provide an accurate picture of the situation of specific groups of persons with disabilities who may be subject to multiple forms of exclusion, particularly women, children, institutionalized persons, those who have been deprived of legal capacity and those belonging to indigenous peoples.

50. The Committee recommends that the State party systematize its collection, analysis and dissemination of statistics and data, taking into consideration the situation of specific groups of persons with disabilities who may be subject to multiple forms of exclusion. The Committee urges the State party to step up its capacity-building measures in this area and to develop indicators that will reflect issues of multiple discrimination and intersectionality as they relate to persons with disabilities, taking into consideration the changeover from a medical to a human rights model of disability.

National implementation and monitoring (art. 33)

51.The Committee notes with concern that the National Advisory Commission on the Integration of Persons with Disabilities (CONADIS) is not of a sufficiently high institutional rank to effectively carry out its duties as a mechanism for facilitating and coordinating matters relating to the implementation of the Convention at all levels and in all sectors of government. The Committee also notes with concern that the National Disability Observatory, which is tasked with overseeing the implementation of the Convention, is a subsidiary body of CONADIS, in violation of article 33, paragraph 2, of the Convention and the Paris Principles.

52. The Committee recommends that the State party raise the institutional rank of CONADIS and endow it with the human and financial resources it needs in order to effectively fulfil its mandate to coordinate the implementation of the Convention at all levels and in all sectors of government. The Committee urges the State party to designate an independent national oversight mechanism that is in full compliance with the Paris Principles and to provide guarantees, as a matter of priority, for the full participation of persons with disabilities and the organizations that represent them in the oversight process.

Follow-up to concluding observations and dissemination

53.The Committee requests the State party to act upon the recommendations of the Committee as set forth in these concluding observations. The Committee recommends that the State party transmit the concluding observations for consideration and action to members of the Government and Congress, officials in the relevant ministries, the judiciary and members of relevant professional groups, such as education, medical and legal professionals, along with local authorities, the private sector and the media, using modern social communication strategies.

54.The Committee requests the State party to disseminate these concluding observations widely in accessible formats, particularly to non-governmental organizations, organizations representing persons with disabilities, persons with disabilities themselves and members of their families.

55.The Committee strongly encourages the State party to involve civil society organizations, in particular disabled persons’ organizations, in the preparation of its second periodic report.

Technical cooperation

56.The Committee recommends that the State party avail itself of technical cooperation from the member organizations of the Inter-Agency Support Group for the Convention for the purpose of obtaining guidance and assistance in the implementation of the Convention and these concluding observations.

Next report

57.The Committee requests the State party to submit its next periodic report in October 2014.