Committee on the Rights of Persons with Disabilities

Follow-up progress report on individual communications *

I.Introduction

1.The present report was prepared pursuant to article 5 of the Optional Protocol to the Convention, which states that the Committee will hold closed meetings when examining communications under the Optional Protocol and, after examining a communication, will forward its suggestions and recommendations, if any, to the State party concerned and to the petitioner. The report is also prepared in line with rule 75, paragraph 7, of the rules of procedure of the Committee, which stipulates that the Special Rapporteur or working group will regularly report to the Committee on follow-up activities, to ascertain the measures to be taken by States parties to give effect to the Committee’s Views.

2.The present report sets out the information received by the Special Rapporteur for follow-up on Views up to the twenty-eighth session pursuant to the Committee’s rules of procedure, and her recommendations to the Committee. The assessment criteria were as follows:

Assessment criteria

Compliance

A .Measures taken are largely satisfactory

Partial compliance

B .Substantive measure(s) taken, but additional information and/or action is required

Non-compliance

C .Reply received but measures taken do not implement the Views/recommendations

No reply

D .No reply to all or parts of recommendations following reminder(s)

II.Communications

A.Bujdosó et al. v. Hungary ( CRPD/C/10/D/4/2011 )

Date of adoption of Views:	9 September 2013
Subject matter:	Failure by the State party to eliminate discrimination on the basis of disability, and to respect the obligation to guarantee the political rights of persons with disabilities, including the right to vote, on an equal basis with other citizens
Articles violated:	Articles 12 and 29 of the Convention
Previous follow-up information:	CRPD/C/22/4, CRPD/C/21/3, CRPD/C/17/3, CRPD/C/16/3 and CRPD/C/12/3

1.Remedy

3.Concerning the authors, the State party is under an obligation to remedy the deletion of the authors’ names from the electoral registers, including by providing them with adequate compensation for moral damages incurred as a result of being deprived of their right to vote in the 2010 elections, as well as for the legal costs incurred in filing this communication.

4.In general, the State party is under an obligation to take measures to prevent similar violations in the future, including by:

(a)Considering repealing article XXIII, paragraph 6, of the Fundamental Law, and article 26, paragraph 2, of the Transitional Provisions of the Fundamental Law, given that they are contrary to articles 12 and 29 of the Convention;

(b)Enacting laws that recognize, without any “capacity assessment”, the right to vote for all persons with disabilities, including those with more need of support, and that provide for adequate assistance and reasonable accommodation in order for persons with disabilities to be able to exercise their political rights;

(c)Upholding, and guaranteeing in practice, the right to vote for persons with disabilities, on an equal basis with others, as required by article 29 of the Convention, by ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use, and where necessary, at their request, allowing assistance in voting by a person of their choice;

(d)Publishing the Committee’s Views, having them translated into the official language of the State party and circulating them widely, in accessible formats, in order to reach all sectors of the population.

2.State party’s response

5.In its submission dated 20 August 2019, the State party provided its observations. The State party reiterates that it has directly compensated one of the authors, and for the other authors, their guardians were entrusted with the compensation. The authors were not paid directly in those cases because the courts had restricted the capacity of the authors to manage their movable and immovable property.

6.The State party reiterates that Act V of 2013 on the Civil Code had entered into force on 15 March 2014, introducing a number of progressive changes in the system of legal capacity, in particular the introduction of supported decision-making measures. The State party refers to the main provisions of the legislation and notes that the aim is for the full limitation of legal capacity to be ordered much more rarely, only when no other solution is possible in the individual circumstances of the person concerned.

3.Authors’ comments

7.In their submission dated 1 December 2021, the authors note that the Civil Code of 2013 has no provisions to ensure that full limitation of legal capacity is used as a means of last resort only. In the absence of such provisions, the State party’s claim that the aim of the regulation is for the full limitation of legal capacity to be ordered much more rarely is an empty promise. The authors submit that, according to their statistics, cases of full limitation of legal capacity still constitute more than half of all cases of limitations. The authors suggest that the Committee request that the State party provide information about the measures taken to ensure that the full limitation of legal capacity is used only if necessary, and statistics on the number of placements under guardianship over the years since the entry into force of the Civil Code, disaggregated by category (full limitation or partial limitation).

8.The authors observe that the State party does not provide any information on issues related to the right of persons with limited legal capacity to vote, the main issue at stake in their complaint. The authors suggest that the Committee request that the State party provide statistics on the number of persons who have lost their right to vote and the number of persons who have regained it since 2012.

9.The authors do not provide further information on the individual compensation. In their comments dated 18 June 2019, the authors had confirmed that the compensation amounts had been transferred to their bank accounts. However, the four authors whose legal capacity had been restricted regarding the handling of property had not have access to the amounts as any related decisions had to be made by their guardians and the guardianship authorities, contrary to the requirements of article 12 (2) of the Convention.

4.Decision of the Committee

10.The Committee considers that the individual recommendation was only partially implemented, as only one of the authors received compensation directly, while the other four authors, whose legal capacity was restricted, did not have direct access to compensation. The Committee refers to its previous follow-up reports and to its concluding observations on the combined second and third periodic reports of Hungary, and regrets the lack of implementation of the general recommendations. In view thereof, the Committee decides to discontinue the follow-up procedure, with “B” assessment for the individual recommendation and “C” assessment for the general recommendations.

B.Beasley v. Australia ( CRPD/C/15/D/11/2013 ) and Lockrey v. Australia ( CRPD/C/15/D/13/2013 )

Date of adoption of Views:	1 April 2016
Subject matter:	Participation of deaf persons in jury duty
Articles violated:	Articles 2–4, 5 (1) and (3), 9 (1), 13 (1), 21 (b) and 29 (b) of the Convention
Previous follow-up information:	CRPD/C/19/4

1.Remedy

11.With respect to the authors, the State party is under an obligation:

(a)To provide them with an effective remedy, including reimbursement of any legal costs incurred by them, together with compensation;

(b)To enable their participation in jury duty, providing them with reasonable accommodation in the form of Australian Sign Language interpretation (Beasley v. Australia) or steno-captioning (Lockrey v. Australia) in a manner that respects the confidentiality of proceedings at all stages of jury selection and court proceedings.

12.In general, the State party is under an obligation to take measures to prevent similar violations in the future, including by:

(a)Ensuring that every time persons with disabilities are summoned to perform jury duty, a thorough, objective and comprehensive assessment of their request for adjustment is carried out and all reasonable accommodation is duly provided to enable their full participation;

(b)Adopting the necessary amendments to the relevant laws, regulations, policies and programmes, in close consultation with persons with disabilities and their representative organizations;

(c)Ensuring that appropriate and regular training on the scope of the Convention and the Optional Protocol, including on accessibility for persons with disabilities, is provided to local authorities, such as the Sheriff, and the judicial officers and staff involved in facilitating the work of the judiciary;

(d)Publishing and widely disseminating the Committee’s Views, in accessible formats.

2.State party’s response

13.In its submission dated 28 October 2016, the State party provided its observations. The State party notes that the Views have been published on the website of the Attorney-General’s Department.

14.The State party notes that while it has given careful consideration to the Views, it respectfully disagrees with them. The State party asserts that all prospective jurors who require an interpreter are treated in the same manner, and the State party does not simply refuse interpreters to people who are deaf. The State party explains that it has a long-standing common law principle, supported by statute, that, to ensure a fair trial, juries are to deliberate in secret and in private. Australian Sign Language interpreters or stenographers have the potential to influence deliberations or the structure, flow and nature of the deliberations, directly or indirectly. Furthermore, interpreters must be rotated out every 15 to 40 minutes, or, in the case of steno-captioning, there must be two court-appointed recorders. These additional interpreters and recorders may impact the continuity of the deliberations and will result in more than one “non-juror” being permitted in the jury room. Additionally, the State party notes that non-English speaking jurors are similarly not accommodated because of the same issues presented. Thus, the State party argues that it is not reasonable to provide either stenographers or Australian Sign Language interpreters.

15.The State party notes that the Committee stated that the State party did not provide enough evidence to show that a reasonable adjustment would constitute an unjust burden. The State party points to concerns about the ability of deaf jurors to properly assess certain types of evidence, even with the provision of an interpreter or stenographer. All interpretation involves some degree of subjective interpretation, including ambiguities in interpreting shade, mannerisms, nuance and tone. Some evidence may also be difficult to interpret because it is based on lengthy video or audio recordings, two or more people may be conversing at the same time, the audio may be indistinct and jurors may be required to rely on their own individual interpretation of the recording, or background noises and mannerisms may significantly influence the interpretation of the recording. When a transcript is provided to a jury, it is always with the disclaimer that the recording is the primary evidence. Judges give the direction that the jurors are not to rely on the transcript, but on what they heard for themselves in the recording. Additionally, interpreters would need to be hired and the cost to the State party would be incurred even if the juror in question is not ultimately selected. Deaf jurors may delay proceedings further because additional time may be needed to resolve any technical language or interpretative difficulties or to accommodate the practices and procedures of interpreters, the assessment of the need for interpreters would delay the start of the trial, and there is risk that there may not be enough interpreters to allow deaf jurors to sit for every day of the trial. The State party submits that the effects of further delays include a significant impact on the accused, both financially (legal representative’s fees) and in terms of their well-being, which affects the human rights of the accused and involves further costs to the judicial system.

16.The State party disagrees with the Committee that it violated article 9 of the Convention by denying the authors a stenographer or an interpreter. The State party considers that article 9 is directed towards the accessibility of physical locations and publicly available services. Jury duty is not a publicly available service: it is not a service, but rather a duty, and it is not open to the public, but rather much of the proceedings are meant to be kept secret. The State party’s domestic law requires all people enrolled as an elector to serve as a juror unless they are excluded or exempt from service.

17.The State party argues that it has not violated article 13 (1) read alone and in conjunction with articles 3, 5 (1) and 29 (b) of the Convention. The State party submits that the ability to complete jury duty does not directly affect access to justice for persons with disabilities, nor does jury duty constitute a political right.

18.The State party claims that it has not violated the authors’ rights under article 21 (b) read alone and in conjunction with articles 2, 4 and 5 (1) and (3) of the Convention. The State party considers that the Convention refers to the public sharing of one’s opinion, and the opinions that one shares as a juror are not publicly available.

19.Lastly, the State party considers that it should not be obliged to reimburse the authors for their legal fees, as it does not believe that it has violated the Convention. In relation to deaf jurors, the State party will continue to review its policies, considering the ongoing academic research in this area and monitoring developments in disability aids, technologies and interpreter services.

3.Authors’ comments

20.In their submission dated 20 December 2021, the authors stated that they had no further comments.

4.Decision of the Committee

21.The Committee regrets the lack of implementation of the individual and general recommendations. In view thereof, the Committee decides to discontinue the follow-up procedure, with “C” assessment.

C.J.H. v. Australia ( CRPD/C/20/D/35/2016 )

Date of adoption of Views:	31 August 2018
Subject matter:	Performance of jury duty by deaf persons
Articles violated:	Articles 5 (2) and (3) and 21 (b) and (e) of the Convention
Previous follow-up information:	None

1.Remedy

22.Concerning the author, the State party is under an obligation:

(a)To provide her with an effective remedy, including reimbursement of any legal costs incurred by her and compensation;

(b)To enable her to perform jury duty, providing her with reasonable accommodation in the form of Australian Sign Language interpretation in a manner that respects the confidentiality of proceedings at all stages of jury selection and court proceedings.

23.In general, the State party is under an obligation to take measures to prevent similar violations in the future. In that regard, the Committee requires the State party:

(a)To ensure that every time persons with disabilities are summoned to perform jury duty, a thorough, objective and comprehensive assessment of their request for adjustment is conducted and all reasonable accommodation is duly provided to enable their full participation;

(b)To adopt the necessary amendments to the relevant laws, regulations, policies and programmes, in close consultation with persons with disabilities and their representative organizations;

(c)To ensure that appropriate and regular training on the scope of the Convention and the Optional Protocol, including on accessibility for persons with disabilities, is provided to local authorities and the judicial officers and staff involved in facilitating the work of the judiciary, such as the manager of jury services;

(d)To publish and widely disseminate the Committee’s Views, in accessible formats.

2.State party’s response

24.In its observations dated 31 July 2019, the State party acknowledges its obligations under the Convention. It submits that the final version of these Views will be published on the website of the Attorney-General’s Department. However, after considering the Views, the State party submits that it respectfully disagrees with the findings. The State party disagrees with the Committee’s view that it failed to consider whether the requested accommodation – to provide interpretation to a deaf person to be considered for service as juror – constituted a disproportionate or undue burden in the specific circumstances of the case. The State party refers to the negative impact that interpreters have on the duration and complexity of trials and the challenges related to the assessment of evidence through interpretation. In relation to cost of interpretation, the State party disagrees that the appropriate consideration is the cost of such accommodation in the individual case of the author, but rather than the cost of providing the requested accommodation in all cases of individuals in similar circumstances. Under the human rights treaties to which it is a party, Australia is obliged to respect and to ensure the human rights of all individuals within its territory or under its jurisdiction, without distinction. As such, if Australian Sign Language interpretation were to be considered reasonable accommodation in the setting of jury service, it would need to be provided to all individuals in similar circumstances to the author, and not just to the author. Given the State party’s obligations and the existence of other individuals requesting accommodation, the relevant consideration is the cost of fulfilling the obligation and thus providing the accommodation to all those for whom it is necessary and reasonable.

25.As the State party does not agree with the Views, it does not believe that it is appropriate to implement the recommendations of the Committee and compensate the author.

26.However, the State party notes that it will continue to increase opportunities for persons with disabilities by providing support that enables their participation and promotes their inclusion in the community. In particular, it will continue to support and promote the inclusion of persons with disabilities in court proceedings wherever possible, including by exploring the possibility of the participation of deaf persons in jury service if it is reasonably practical to do so without compromising the fairness of a trial and the interests of justice. The State party will also consult with key stakeholders regarding existing barriers that may prevent people with certain disabilities from participating in jury service. In relation to deaf jurors, the State party will continue to monitor developments in disability aids, technologies and interpreter services for incorporation into courtroom design.

3.Author’s comments

27.In her comments dated 9 June 2022, the author submits that the government of Western Australia has stalled on moving towards the participation of deaf persons in juries using Australian Sign Language. She submits that in March 2020, the government of Western Australian issued a discussion paper on the participation of persons with disabilities in jury service. In May 2020, many leading international experts and organizations of persons with disabilities, including the author’s counsel, put forward submissions to support the amendment of the Juries Act 1957 of Western Australia to enable the use of interpreters during jury duty. Since their submission, there has been no progress in that regard. The author nevertheless notes that the government of the Australian Capital Territory has amended its Juries Act 1967 to include Australian Sign Language interpreters for deaf persons serving in a jury. The author considers that it should therefore be possible also for the government of Western Australian to amend its legislation.

28.The author submits that she is seeking financial compensation of approximately $31,025, as she is still not allowed to participate in jury service.

4.Decision of the Committee

29.The Committee regrets the lack of implementation of the individual and general recommendations. In view thereof, the Committee decides to discontinue the follow-up procedure, with “C” assessment.

D.Bacher v. Austria ( CRPD/C/19/D/26/2014 )

Date of adoption of Views:	16 February 2018
Subject matter:	Responsibility of State party’s authorities to promote the accessibility of a person with disabilities in the context of a private dispute between neighbours
Articles violated:	Article 9 read alone and in conjunction with article 3 of the Convention
Previous follow-up information:	CRPD/C/21/3

1.Remedy

30.Concerning Mr. Bacher, the State party is under an obligation to provide him with an effective remedy, in particular:

(a)To facilitate a solution to the conflict related to the use of the path, which is the only means of gaining access to the Bacher family home, taking into account the special needs of Mr. Bacher as a person with disabilities and the criteria established in the present Views;

(b)To award Mr. Bacher financial compensation for the violations suffered;

(c)To reimburse the author for the legal costs reasonably incurred in domestic proceedings and in the processing of the present communication.

31.The State party is also under an obligation to take measures to prevent similar violations in the future. In this perspective, the Committee requires the State party:

(a)To ensure continuous capacity-building of the local authorities and courts responsible for monitoring implementation of accessibility standards;

(b)To develop an effective monitoring framework and set up efficient monitoring bodies with adequate capacity and appropriate mandates to make sure that accessibility plans, strategies and standardization are implemented and enforced;

(c)To translate the Views of the Committee into the official language of the State party, to publish them and to distribute them widely, in an accessible format, so that they reach all sectors of the population.

2.State party’s response

32.In its response dated 10 September 2018, the State party upheld its position regarding the inadmissibility ratione temporis of the communication, as also stated in the dissenting opinion of Damjan Tatić.

33.The State party submits that under the current legislation on construction, the author’s housing would not be granted building permission. The State party submits that Vomp municipality and Tyrol Land were facilitating a solution for the author’s case. It refers to the recent development of an apartment complex and underground car park that has made the author’s house more accessible. The author’s family have bought a parking space in this underground car park, which has direct access to their home. Vomp municipality also built a new road to the neighbouring property. The neighbour’s right of way on the path to the author’s home was therefore deleted from the land register, because it had become unnecessary. In August 2018, the author’s family applied for permission to rebuild the demolished roof over the footpath. As provided for in the Tyrol building regulations, permission will be granted as soon as the author’s neighbours have given their written consent. However, the State party considers there is no longer any urgent need for the author to use that path because of the alternative access to the car park.

34.The State party considers that since the solution outlined above is even better than full restitution for the author, there is no requirement for any further financial contribution. However, the State party refers to various programmes for persons with disabilities available to the author and his family as sources of financial support.

35.The State party claims that currently domestic laws do not allow the State party to compensate the author for costs associated with treaty body communications. The State party also explains that compensating the author for legal costs associated with civil proceedings is not legally possible, as the Austrian system is a “principle of success” system, meaning that if a suing party wins, that party may seek legal costs from the losing party.

36.Regarding the general recommendations in the Views, the State party submits that, as a member of the European Union, it fully subscribes to the goals of the European Disability Strategy 2010–2020 and implements its measures. At the national level, the State party refers to the National Action Plan on Disability 2012–2020, which includes a chapter on construction containing information about the current situation in Austria and objectives and measures to improve the situation for persons with disabilities. It also includes measures related to the provision of training on accessibility for students following the relevant degrees and for other stakeholders. The State party has also made efforts to unify the building legislation of the Länder with a view to improving accessibility through the adoption of common guidelines and standards. The Federal Government’s work programme for 2018–2022 contains a chapter dedicated to accessibility for persons with disabilities. At the Länder level, the State party submits that several Länder have implemented laws to fully integrate the Convention. The building code of Tyrol Land includes legal provisions to ensure that new building projects ensure barrier-free access for persons with disabilities.

37.The State party submits that various institutions in Austria are already involved in the monitoring of accessibility for persons with disabilities. In Tyrol, a monitoring committee, based on the Anti-Discrimination Act of Tyrol Land, monitors the implementation of the Convention. This monitoring committee, together with the federal monitoring committee, adopted a joint opinion on 22 May 2018 requesting the Austrian authorities to implement the Committee’s recommendations promptly and effectively. At the national level, the Federal Disability Advisory Board and the supervisory group on the National Action Plan on Disability will also discuss the Views.

38.The State party also claims to have translated the Committee’s Views into German and published the Views in English and German on the websites of the Federal Ministry of Constitutional Affairs, Reforms, Deregulation and Justice and the Federal Ministry of Labour, Social Affairs, Health and Consumer Protection. It has distributed the Views to relevant authorities.

39.Regarding the provision of training, the State party submits that in 2016, a one-week training course for judges and future judges was organized by the Ministry of Justice on the rights enshrined in the Convention, and the provisions of the Convention were also covered in 16 training sessions for judges and future judges following the amendment of the Adult Protection Act. Tyrol Land will also continue to provide training courses aimed at assisting persons with disabilities.

40.The State party provided further observations dated 23 January 2019. The State party reiterates that barrier-free access to the author’s house has been created at ground level, as well as a short-term parking facility and barrier-free access from the underground car park. The Mayor had offered to buy a parking space in the underground car park and rent it out to the author’s family for a symbolic amount, but the family decided to purchase that space. Although no subsidy was available for that purchase, the family obtained an extraordinary subsidy of 800 euros from a non-governmental organization. As to the rebuilding of the roof above the path providing access to the author’s home, the State party notes that agreement with the neighbouring houses is required to build a roof measuring more than 50 per cent of the existing roof and that, although local authorities attempted to mediate, agreement has not ultimately been reached. In the light of that fact, the author’s family amended their application for a building permit and limited it to 50 per cent of the existing roof. In November 2018, that permit was granted so that the roof could now be rebuilt. A subsidy has been approved covering 25 per cent of the costs of rebuilding the roof. A provisional additional subsidy of 5,693 euros has already been granted.

3.Author’s comments

41.In comments dated 15 November 2021, 25 October 2022 and 19 December 2022, the author submits that the State party’s authorities have not yet implemented the individual recommendations contained in the Committee’s Views, as the roof has still not been rebuilt, and that they remain in need of financial support to pay for the roof. The author disagrees that Tyrol Land is facilitating a satisfactory outcome to the case.

42.The author explains that the family negotiated the private purchase of a space in an underground car park in the new development of eight blocks of flats on private ground. The cost of the parking space was 35,000 euros, for which the author’s parents, as pensioners, had to take a bank loan. The author clarifies that the mayor at no time offered to assist with financial support and that in any event, the purchase took place in 2017, before the Committee issued its Views. The author further explains that the parking space still has to be reached using the footpath, which remains uncovered and dangerous during the winter. The author regrets that the State party has concluded that the car park space constitutes “alternative access” without even having undertaken any inspection of the place. The author explains that one of the neighbours still holds an easement over the footpath, which is also used by assistance services such as the Red Cross. The author’s family remains responsible for the maintenance and safety of the footpath.

43.The author submits that there has been no attempt at mediation other than the local authorities suggesting that they would agree to provide planning permission for the roof if the author’s family agreed to the wishes of one neighbour, who wanted to build two blocks of flats adjacent to their access footpath, to which the author’s family disagreed as the neighbour’s property has water-flow problems. In addition, the author explains that the other neighbour would also have to agree to the reconstruction of the roof, which he opposes.

44.The author clarifies that even if permission to build a roof measuring 50 per cent of the existing roof has been granted, the family considers that this solution is totally unsuitable for the winter and will not solve their situation. In any case, the family do not even have the financial means to pay for 50 per cent of the existing roof. The author is also afraid that the neighbours would oppose again and sue. The author explains that according to an estimate, the cost to rebuild 50 per cent of the existing roof would be 39,639 euros plus value added tax.

45.The author clarifies that the family received 800 euros from the monitoring committee in Innsbruck, that all citizens are entitled to apply for these subsidies and that it must not be seen as the State party having compensated them according to the Views. The author explains that the family also received 6,000 euros from the Vienna Land office of the Ministry of Social Affairs. These funds were used to pay some of the family’s debts relating to the court hearings, the building and removal of the roof, architects, lawyers and so on. The author explains that the family’s debts amount to some 72,000 euros, including the 35,000 euros for the parking space.

46.The author submits that State party’s authorities are no longer responding to his enquiries.

4.Decision of the Committee

47.The Committee decides to maintain the follow-up dialogue open and to request further information from the State party.

E.Given v. Australia ( CRPD/C/19/D/19/2014 and CRPD/C/19/D/19/2014/Corr.1 )

Date of adoption of Views:	16 February 2018
Subject matter:	Right to vote by secret ballot
Articles violated:	Article 29 (a) (i) and (ii) read alone and in conjunction with articles 4 (1) (a), (b), (d), (e) and (g), 5 (2) and 9 (1) and (2) (g) of the Convention
Previous follow-up information:	CRPD/C/21/3

1.Remedy

48.Concerning the author, the State party is under an obligation:

(a)To provide her with an effective remedy, including compensation for any legal costs incurred in filing the present communication;

(b)To take adequate measures to ensure that the author has access to voting procedures and facilities that will enable her to vote by secret ballot without having to reveal her voting intention to any other person in all future elections and referendums in the State party;

(c)To publish the present Views and circulate them widely in accessible formats so that they are available to all sectors of the population.

49.In general, the State party is under an obligation to take measures to prevent similar violations in the future. In that regard, the Committee requires the State party:

(a)To consider amending the Electoral Act in order to ensure that electronic voting options are available and accessible to all persons with disabilities who so require, whatever the types of impairment;

(b)To uphold, and to guarantee in practice, the right of persons with disabilities to vote on an equal basis with others, as required by article 29 of the Convention, by ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use, and protect the right of persons with disabilities to vote by secret ballot through the use of assistive technologies;

(c)To consider amending the Electoral Act in order to ensure that, in cases where assistance by another person may be necessary to enable a voter to cast his or her vote, the person providing such assistance is under an obligation to maintain the confidentiality of that vote.

2.State party’s response

50.On 10 December 2018, the State party submitted that it had given due consideration to the Views, which it had published on the website of the Attorney-General’s Department, in compliance with the Committee’s recommendations.

51.The State party disagrees with the Committee’s findings and, in particular, its interpretation of article 29 of the Convention. It notes that the right to vote by secret ballot is subject to certain reasonable restrictions, as interpreted by the Human Rights Committee in its general comment No. 25 (1996) on participation in public affairs and the right to vote. The State party notes that a ballot can still be secret where an elector is assisted by another person of their choice or another independent person, and provided that the voter is protected from coercion or compulsion and from disclosure of the vote to the State authorities.

52.The State party argues that the use of an electronic voting option would constitute a disproportionate burden. It established a trial of stand-alone voting machines for blind voters or voters with low vision at the 2007 federal elections, and the result showed a low level of voter engagement with the voting option and a cost per vote of approximately $1,790.49 compared to an average cost per elector of $5.70. The Australian Parliament has periodically considered the appropriateness of electronically assisted voting but has concluded that it has disproportionate costs and flaws with regard to security and data integrity. However, it will continue to consider electronically assisted voting, including the possibility of amending the Electoral Act to extend such voting to persons with disabilities other than visual impairments.

53.The State party acknowledges the failures in the way in which the author has been treated, in particular the denial of live assistance. The State party notes the Committee’s recommendation that a presiding officer providing live assistance to a voter be required by law to maintain the confidentiality of that voter’s ballot and indicates that, although legislative change is not possible at the current stage of the electoral cycle, it has developed training materials for all polling staff on supporting electors with disabilities in polling places.

54.The State party argues that article 9 (1) of the Convention is not applicable in the present case because it refers to access to certain physical locations, facilities and services rather than to voting. It adds that electronically assisted voting is not a service that it generally makes available to the public.

3.Author’s comments

55.On 15 July 2019, the author submitted her comments. The author notes that the State party’s argument that it would be too costly to provide technological assistance to vote does not take into account the significant advancements in technology since 2007. Additionally, the author observes that the State party has not produced any evidence to prove that the provision of assistive technologies would cause a disproportionate or undue burden to the State party. She also observes that the State party does not provide any reasoning for its assertion that computer-assisted voting is inappropriate at the present time. The author concludes that the State party has made no progress in providing assistive technologies to persons with disabilities, despite the fact that such technology exists and is provided by the New South Wales Electoral Commission.

56.The author argues that the State party is relying on an outdated and narrow definition of accessibility and is therefore failing to comply with its obligations under the Convention.

4.Decision of the Committee

57.The Committee regrets the lack of implementation of the individual and general recommendations. In view thereof, the Committee decides to discontinue the follow-up procedure, with “C” assessment.

F.Sahlin v. Sweden ( CRPD/C/23/D/45/2018 )

Date of adoption of Views:	21 August 2020
Subject matter:	Recruitment process and appropriate modification and adjustments in the workplace
Articles violated:	Articles 5 and 27 of the Convention
Previous follow-up information:	None

1.Remedy

58.Concerning the author, the State party is under an obligation:

(a)To provide him with an effective remedy, including reimbursement of any legal costs incurred by him, together with compensation;

(b)To publish the present Views and circulate them widely in accessible formats so that they are available to all sectors of the population.

59.In general, the State party is under an obligation to take measures to prevent similar violations in the future, including by:

(a)Taking concrete measures to ensure that the employment of persons with disabilities is promoted in practice, including by ensuring that the criteria applied to assess the reasonableness and proportionality of the accommodation measures is assessed in alignment with the principles enshrined in the Convention and the recommendations contained in the present Views, and that a dialogue with the persons with disabilities is systematically carried out to enable the realization their rights on an equal basis with others;

(b)Ensuring that appropriate and regular training is provided to State agents involved in recruitment process and to legal servants, especially those of the Labour Court, on the Convention and the Optional Protocol, including on the promotion of employment of persons with disabilities in compliance with the Convention, in particular articles 9 and 27.

2.State party’s response

60.On 25 March 2021, the State party provided its comments. The State party submits that the Views have been taken seriously. However, the State party that it is not under any international obligation under the Convention or the Optional Protocol to provide the author any financial compensation or reimbursement of legal costs. Consequently, it has not initiated any processes aimed at providing the author with compensation or reimbursement of legal cost incurred by him.

61.The State party submits that in 2017, the Riksdag (parliament) decided to approve a new national goal for the disability policy, taking the Convention as the starting point. The goal is to achieve equal living conditions and full participation in society for persons with disabilities in a society based on diversity. The State party has identified four target areas in order to achieve this goal: (a) the principle of universal design; (b) shortcomings in terms of accessibility; (c) individual support and solutions for individual support; and (d) prevention and countering of discrimination. The report of an inquiry tasked with considering how the national disability policy can be implemented in different areas of society was submitted to the Government in 2019.

62.The State party notes that on 18 March 2021, a bill was submitted to the Riksdag with a proposal to establish an institute for human rights, which would monitor, investigate and report on how human rights are respected and realized in the State party. The institute is to be established on 1 January 2022.

63.Furthermore, the State party set up an inquiry to review the supervisory competence that the Equality Ombudsman should have in terms of preventive work against discrimination in the workplace. The Ombudsman submitted its report in December 2020 and the report has been referred to the relevant actors for consideration. Also in 2020, the State party set up an inquiry to strengthen interpretation services, including for education and working life, specifically for persons who are deaf, have hearing impairments or are deafblind. The inquiry is set to report on its findings on 15 January 2022.

64.The State party conducts systematic dialogues with persons with disabilities. The State party holds an ongoing dialogue with the Disability Delegation, the Government’s main forum for consultation and dialogue with the disability movement. The State party’s Agency for Participation works systemically with organizations of persons with disabilities. In 2018, the Disability Council was established to facilitate dialogue between the Agency and the disability movement.

65.In regard to the Committee’s recommendations on training, the State party submits that between 2015 and 2017, the Agency for Participation and the Equality Ombudsman conducted a communication initiative in order to increase knowledge and awareness of the Convention among the public, State agents and private actors, as well as women and men, girls and boys with disabilities. During that process, consultations were held with the relevant organizations, especially organizations of persons with disabilities. In addition, the Agency for Participation has cooperated with Uppsala University in the training of public sector employees on human rights by providing training modules on the Convention. In June 2018, the State party instructed the Agency for Participation to inform employers and other stakeholders about responsibilities and efforts to provide interpreters and other support.

66.The State party reports that it has distributed the Views to the relevant public authorities and has published the Views on the Government’s website alongside a summary in Swedish. A translation from English to Swedish of the Views in their entirety is currently being prepared, and will be published on the Government’s website.

67.Given the action taken, the State party holds that it has taken reasonable steps to comply with the Committee’s Views and requests the Committee to conclude the follow-up dialogue process.

3.Author’s comments

68.On 16 June 2021, the author submitted his response to the State party’s observations. The author considers that the State party has failed to implement the Views sufficiently. He submits that his opinion is supported by the Swedish Association of Deaf Persons and Disability Rights Defenders Sweden.

69.The author submits that the State party’s new national goal for the disability policy, approved in 2017, is just a renewal of legislation dating to 2000 that instituted a similar goal. In view of this, and taking into account the fact that statistics in Sweden consistently show that the percentage of unemployed persons with disabilities is higher than the rest of the population, there is nothing to suggest that the new goal will speed up the process towards achieving equal employment opportunities for persons with disabilities. The author considers that the goal is vaguely drafted and does not deal with specific obstacles that persons with disabilities face in their everyday lives. The author observes that the bill submitted to the Riksdag with a proposal to establish an institute for human rights does not provide that the institute will hear individual complaints. As the domain of human rights is so vast, there is a risk that persons with disabilities will be marginalized in this work.

70.The author argues that the Views have not been made available for all groups of persons with disabilities, in accessible formats, contrary to the Committee’s recommendations.

71.The author requested compensation, but the Government referred to this forthcoming response. The author submits that legal studies show that it is unclear whether the author would be successful in claiming compensation before domestic courts. He considers that it is too risky, as he could be ordered to pay the State party’s legal cost to hundreds of thousands of krona in the event of a lost case. As the author has been unemployed since 2018, he could not afford to pay these costs. He explains that free legal aid is not available for such matters.

72.The author disagrees with the State party’s interpretation that the Convention does not obligate the State party to compensate victims. The author argues that since the Committee has the competence to interpret the Convention, it is therefore the obligation of the State party to follow the Committee’s interpretations, as a State party to the Convention and the Optional Protocol. Additionally, the author considers that if the State party is correct and the Convention does not obligate the State party to pay compensation to the author, then the Convention could potentially become illusory. A complaints mechanism is time-consuming and costly. It can scare off the majority of individuals with disabilities who have a limited financial budget to initiate such a mechanism. In addition, the State party will never acknowledge that the author has been a victim of discrimination. The author also points out that, because the Labour Court ruled against the author, others in the deaf community who have brought complaints are similarly being ruled against based on the ruling in the author’s case. The author expresses frustration that the Labour Court finds discrimination on the basis of other disabilities, race, gender and sexual orientation, but refuses to rule in favour of deaf petitioners. The author also states that as an unemployed person, he has no way of paying back the fees incurred to bring this case.

73.The author has concerns that the inquiry about the Equality Ombudsman will not result satisfactorily, because the Ombudsman failed to review all the facts and circumstances of his case. In his opinion, the inquiry should address the point that, when the Ombudsman decides to assist a complainant, it should be mandated to consider all relevant factors that are necessary for success at court. Concerning the results of the inquiry on the implementation of the national disability policy, the author notes that the report does not contain any concrete or effective measures to promote equal opportunities in employment. In addition, the author submits that the State party has been aware of the needs of those with hearing impairments for many years and still has not improved the interpretation services for the deaf community by allocating sufficient financial resources. Instead, the State party continues to hold inquiries.

74.The author submits that, while the government agencies have made employment, specifically internships, available to persons with disabilities, such persons with disabilities are unable to find work after their internships are over. The author urges the State party to find solutions to this problem, suggesting that it could be that the internships are not long enough.

75.Lastly, the author notes that the State party has instructed the Agency for Participation to inform employers and other stakeholders about responsibilities and efforts to provide interpreters and other support. The author wonders whether this instruction also includes information on which benefits are available to employers that hire persons who are deaf or have hearing impairments, which could be very relevant.

4.Decision of the Committee

76.The Committee decides to maintain the follow-up dialogue open and to request further information from the State party.

G.Calleja Loma and Calleja Lucas v. Spain ( CRPD/C/23/D/41/2017 )

Date of adoption of Views:	28 August 2020
Subject matter:	Right of a child with Down syndrome to inclusive education
Articles violated:	Articles 7, 15, 17, 23 and 24 read alone and in conjunction with article 4 of the Convention
Previous follow-up information:	None

1.Remedy

77.Concerning the authors, the State party is under an obligation:

(a)To provide them with an effective remedy, including reimbursement of any legal costs that they have incurred, together with compensation, taking into account the emotional and psychological harm that they have suffered as a consequence of the treatment that they received and the way in which their case was handled by the authorities;

(b)To ensure that Mr. Calleja Loma is admitted to a truly inclusive vocational training programme, in consultation with him and with his parents;

(c)To conduct an effective investigation into the allegations of abuse and discrimination reported by the authors and ensure accountability at all levels;

(d)To publicly recognize, in accordance with the present Views, the violation of the rights of Mr. Calleja Loma, a child, to inclusive education and to a life free from violence and discrimination, as well as the violation of the rights of his parents, who were wrongly charged with the criminal offence of neglect, which had psychological and financial consequences;

(e)To publish the present Views and circulate them widely in accessible formats so that they are available to all sectors of the population.

78.In general, the State party is under an obligation to take measures to prevent similar violations in the future. In this regard, the Committee refers to the recommendations contained in its concluding observations and in its inquiry concerning Spain under article 6 of the Optional Protocol. In particular, it requests the State party, in close consultation with persons with disabilities and their representative organizations:

(a)To expedite legislative reform, in line with the Convention, to fully eliminate the medical model of disability and clearly define the full inclusion of all children with disabilities and its specific objectives at each level of education;

(b)To take measures to ensure that inclusive education is considered as a right, and grant all students with disabilities, regardless of their personal characteristics, the right of access to inclusive learning opportunities in the mainstream education system, with access to support services as required;

(c)To formulate a comprehensive, inclusive education policy with strategies for promoting a culture of inclusion in mainstream education, including individual rights-based assessments of educational needs and necessary accommodation, support for teachers, respect for diversity in ensuring the rights to equality and non-discrimination, and the full and effective participation of persons with disabilities in society;

(d)To eliminate any educational segregation of students with disabilities in both special education schools and specialized units within mainstream schools;

(e)To ensure that the parents of students with disabilities cannot be prosecuted for neglect if they demand that their children’s right to inclusive education on an equal basis with others be respected.

2.State party’s response

79.On 14 May 2021, the State party submitted its observations. The State party recalls that on 26 September 2014, the authors submitted their communication to the European Court of Human Rights, and that on 13 November 2014, this application was declared inadmissible by a decision in single-judge formation, pursuant to articles 34 and 35 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

80.The State party submits that, as a high contracting party to the European Court of Human Right, it is subject to the Court’s jurisdiction and bound by final decisions adopted by the Court. Accordingly, the State party does not consider it appropriate to comment on the Committee’s Views of 28 August 2020, since the same facts that are the subject of the communication have been examined by the Court.

81.With regard to the general recommendations, the State party notes that the Directorate-General for International Legal Cooperation and Human Rights of the Ministry of Justice has carried out certain action within the framework of its powers for the better promotion of human rights, ensuring effectiveness by proposing measures that take into account the opinions of the competent international bodies for the safeguarding of human rights, as set out in Royal Decree 453/2020 of 10 March 2020.

82.With regard to the recommendations related to legislative reform concerning the elimination of the medical model of disability, the State party notes that on 7 July 2020, the Council of Ministers approved the referral to parliament of a draft law reforming civil and procedural legislation to support persons with disabilities in the exercise of their legal capacity. It includes a paradigm shift as its aim is to ensure that decision-making by persons with disabilities is the result of their will and preferences, and that they are not substituted in the decision-making process on matters in their interest. It is expected that parliament will approve the future law in early 2021.

83.In relation to the recommendations on inclusive education, the State party reports that Organic Act No. 3/2020 of 29 December 2020, amending Organic Act No. 2/2006 of 3 May 2006 on education, includes the child rights approach, as established in the Convention on the Rights of the Child, among the guiding principles of the system, recognizing the best interests of the child, their right to education and the obligation of the State to ensure the effective fulfilment of their rights. The right to inclusive and quality education is expressly included. Support for inclusive education is reflected in various precepts: it is established that teaching will be adapted to students with specific educational support needs, that parents or legal guardians of students with special educational needs must be heard and informed, and that procedures will be regulated to resolve discrepancies, always taking into account the best interests of the child. End-of-year evaluations will provide appropriate guidance on the type of schooling that will tend to enable pupils to have access to or to remain in the most inclusive system.

84.Educational administrations will take the necessary measures to avoid the segregation of students and ensure an adequate and balanced distribution of students with specific educational support needs among schools. They will ensure that schooling decisions guarantee the most appropriate response to the specific needs of each student. Public authorities are required to develop a plan so that within 10 years following the adoption of the Act, in accordance with the Convention and in compliance with Sustainable Development Goal 4, mainstream schools have the necessary resources to be able to attend to students with disabilities in the best conditions. Education administrations will continue to provide the necessary support to special education centres so that, in addition to providing schooling for students who require highly specialized attention, they can act as points of reference and support centres for mainstream centres.

85.With regard to the recommendations concerning guarantees that parents of students with disabilities cannot be prosecuted for neglect if they demand that their children’s right to inclusive education on an equal basis with others be respected, the State party explains that only in cases of repeated and unjustified failure to attend classes should a copy of the file opened for this purpose be forwarded to the Public Prosecutor’s Office. The Public Prosecutor’s Office then proceeds to initiate the appropriate pretrial proceedings in order to assess the circumstances of each case individually, tailoring the institutional response to the specific situation of the student concerned and their families. The State party points out that only cases in which there is no clear and definite justification for even temporary exemption from the duty to attend school in person prompt the Public Prosecutor’s Office to continue those proceedings with a view to bringing criminal proceedings against parents or guardians who have allegedly infringed the duties inherent in parental authority in this area.

86.The State party also reports that the Views have been published on the website of the Ministry of Justice.

3.Authors’ response

87.In their comments dated 30 August 2021, the authors express their astonishment at the State party’s questioning of the competence of the Committee to examine the communication and the binding nature of the Views. They conclude that the State party has not applied the principle of good faith and has not fulfilled its obligation to comply with the Convention.

88.With regard to the individual reparation, the authors explain that, on 28 July 2021, they filed a claim for State responsibility before the Ministry of Justice, with the aim of enforcing, at least in part, the obligations arising from the Views. They explain that it would be distressing for their family to have to go back to court to enforce the obligations of the judgment and to have to continue to suffer from this unfortunate process.

89.The authors submit that the Organic Act No. 3/2020 of 29 December 2020, amending Organic Act No. 2/2006 of 3 May 2006 on education, maintains article 74 (1) of the previous act, which allows for the segregation and social exclusion of students with disabilities. The authors estimate that approximately 90 per cent of students with disabilities do not enjoy their right to inclusive education. The authors complain that the Act provides for too long a period (10 years) in which inclusive education must be achieved.

90.The authors consider that those who are fighting for their children’s right to inclusive education should not be reported and charged with the criminal offence of neglect. However, the authors continue to receive calls from distressed families who are threatened in this regard.

91.The authors indicate that the State party’s efforts to publicize the Views have been almost non-existent, and that the Views have not been distributed in accessible formats in order to reach all sectors of the population.

4.Action taken

92.In a note verbale to the State party dated 21 July 2021, the Special Rapporteur recalled that the Committee had considered that, given the brevity of the decision rendered by the European Court of Human Rights and, in particular, the absence of any argument or clarification explaining the rejection of the authors’ application on the merits, it was not in a position to determine with any certainty whether the case presented by the authors had already been the subject of an examination, however limited, on the merits, and that the decision therefore did not constitute an obstacle to the admissibility of the communication for consideration on the merits. The Special Rapporteur reiterated that the State party was under the obligation to implement the recommendations contained in the Views.

5.Decision of the Committee

93.The Committee decides to maintain the follow-up dialogue open and to request further information from the State party and a meeting to discuss the prompt implementation of the Committee’s Views.

H.J.M. v. Spain ( CRPD/C/23/D/37/2016 )

Date of adoption of Views:	21 August 2020
Subject matter:	Right to non-discrimination in the maintenance or continuance of employment (assignment to modified duty)
Articles violated:	Article 27 (a), (b), (e), (g), (i) and (k) read alone and in conjunction with article 3 (a)–(e); article 4 (1) (a), (b) and (d) and (5); and article 5 (1)–(3) of the Convention
Previous follow-up information:	None

1.Remedy

94.Concerning the author, the State party is under an obligation:

(a)To afford him the right to adequate compensation, including any legal costs incurred in filing the present communication;

(b)To take appropriate measures to ensure that the author is given the opportunity to undergo an assessment of fitness for alternative duties for the purpose of evaluating his potential to undertake modified duties or other complementary activities, including any reasonable accommodation that may be required.

95.In general, the State party is under an obligation to take measures to prevent similar violations in the future, including by:

(a)Taking all necessary measures to align the modified-duty regulations of the Figueras municipal police (ordinance) and their application with the principles enshrined in the Convention and the recommendations contained in the present Views, ensuring that assignment to modified duty is not restricted only to persons with a partial disability;

(b)Similarly harmonizing the variety of local and regional regulations governing the assignment of public officials to modified duty in accordance with the principles enshrined in the Convention and the recommendations contained in the present Views;

(c)Publishing the present Views and circulating them widely in accessible formats so that they are available to all sectors of the population.

2.State party’s response

96.In its submission dated 30 September 2021, the State party provided its comments. The State party considers that the communication should have been declared inadmissible in conformity with article 2 (c) of the Optional Protocol, as it refers to the same questions already examined by the Committee in V.F.C. v. Spain (CRPD/C/21/D/34/2015).

97.As the communication refers to the same circumstances as in V.F.C. v. Spain, the State party provides the same information as it provided within the framework of the follow-up procedure on the Views in that case. The State party informs the Committee that Barcelona City Council has not implemented any regulatory changes, and the State party concurs with the City Council’s reasoning that it is unable to do so. Implementing the Committee’s Views would require modification of the legal order, which would be outside of the City Council’s powers.

98.The State party notes that city councils must follow State-level regulations. The Public Service Regulations Act states that public servants have the right to retire according to the established terms and conditions of the applicable regulations. Under article 63, public servants lose their status as such upon mandatory retirement. Furthermore, mandatory retirement may result from a finding of “permanent total disability” in relation to their usual occupation. Based on the author’s disability status, it would not be possible for him to continue his service on modified duty without a re-evaluation of his abilities.

99.The competent State authority to determine the degree of work-related permanent disability is the Social Security Institute. The author was injured in a workplace accident and consequently the Social Security Institute is the competent authority under Spanish law to determine his disability status. The Committee’s Views emphasize the need to allow the author to undergo a fitness assessment for alternative duties to evaluate his potential to undertake modified duty, without necessarily changing the finding regarding the degree of disability. However, the State party argues that the Barcelona City Council must abide by State laws.

100.The State party argues that the Barcelona City Council is not the competent authority to modify a disability status determination by the Social Security Institute. Local governments do not have legislative authority to alter the regulatory scheme in conformity with the constitutional framework, which is what implementing the Committee’s Views would require. Legislative amendments in the area of public servants, social security or retirees are the State’s responsibility. The State party emphasizes that the Committee’s Views demand amendments to State law. However, there is not sufficient consensus or political will among the authorities concerned to do so.

101.The State party submits the Social Security Institute’s administrative judgment with respect to its obligation to prevent future similar violations from occurring. The judgment enumerates the process for cases involving the granting of permanent total disability status and the subsequent assignment of the individual to modified duty. Based on the Supreme Court’s doctrine, the individual will continue in the same occupation that led to the disability status. Proceedings will be initiated to determine whether the initial degree of disability should be reviewed by the corresponding disability evaluation committee.

3.Author’s comments

102.In his comments dated 22 November 2021, the author submits that neither Figueras Municipal Council nor the State party has taken any measures to comply with the Committee’s Views. He also considers that the State party is misinterpreting article 2 (c) of the Optional Protocol by considering that the case has already been examined in the Views relating to V.F.C. v. Spain, since it concerns different persons and different municipalities. Contrary to the State party’s assertion, the author considers that the Committee’s Views are binding on the State party.

103.The author submits that he has requested Figueras Municipal Council to implement the Committee’s Views, but has received no reply. The author states that he has also claimed before the domestic courts that the Views be implemented and that Figueras Municipal Council be requested to proceed in a timely manner with the alternative functional assessment, taking account of the author’s potential skills to perform modified duties or other complementary activities suitable to his situation.

104.Regarding the State party’s assertion that disability retirement was appropriate in his case under domestic legislation, the author refers to a number of judgments in which the domestic courts have ruled that in cases similar to the author, disability retirement, on the contrary, did not apply. The legislation applicable to his case is the General Social Security Act, approved by Royal Legislative Decree No. 8/2015 of 30 October 2015, which provides only for compulsory retirement due to age, and not for compulsory retirement due to permanent total disability. Article 198 of that decree provides for the compatibility of the pension for permanent total disability with any salary that the worker may subsequently receive, in the same company or in a different company, provided that the duties do not coincide with those that gave rise to the permanent total disability. The author notes that, in any case, the State party’s reply ignores the main question as to whether the author also had the capacity to work despite his disability.

105.The author recalls that the modified-duty regulations of the Figueras municipal police, published in the Official Gazette of the Province of Girona on 26 March 2015, allow persons with permanent disabilities to undertake modified duty, which the State party appears to ignore. However, these regulations are not applicable retroactively, which is detrimental to his interests. Furthermore, he recalls that Catalan legislation Act No. 16/1991 (Local Police Act) provides for the continuation of employment in modified duty and reasonable adjustments in order to be able to adapt to the job.

106.The author concludes that the State party’s comments do not respond to the Committee’s requirements and clearly indicate that it does not intend to make the relevant legislative amendments.

4.Decision of the Committee

107.The Committee decides to maintain the follow-up dialogue open and to request further information from the State party and a meeting to discuss the prompt implementation of the Committee’s Views.