Experts of the Committee on the Rights of Persons with Disabilities Commend Argentina’s Investments in Cross-Cutting Disability Policies , Ask Questions on Draft Mental Health Law Amendments and Girls and Women with Disabilities’ Access to Sexual and Reproductive Rights
The Committee on the Rights of Persons with Disabilities today concluded its consideration of the combined second and third periodic report of Argentina on its implementation of the Convention on the Rights of Persons with Disabilities. Committee Experts commended investments in cross-cutting policies on disabilities, while asking questions on draft amendments to the mental health law and girls and women with disabilities’ access to sexual and reproductive rights.
Amalia Gamio Rios, Committee Vice-Chair and Country Co-Rapporteur, said Argentina had made great efforts to implement the Convention, creating in 2017 the National Disability Agency. The Agency had a good budget, which was reflected in the cross-cutting policies of the Ministry of Economy. This was significant progress. However, the Committee was concerned about certain delays and setbacks in the implementation of the Convention.
Ms. Gamio said draft amendments to the mental health law were regressive. Under the amendments, judges would have the ability to place people in institutions. “Certain and imminent risk” would be considered as grounds for involuntary internments, which was totally contrary to article 14 of the Convention and the Committee’s Guidelines on Deinstitutionalisation.
Rosemary Kayess, Committee Vice-Chair, added that the Committee had received disturbing reports of numerous deaths in mental health centres due to institutional violence, negligence and practices that infringed human rights. Were there independent mechanisms with powers to investigate deaths in mental health facilities?
Some Committee Experts asked about measures in place to promote empowerment of women and girls with disabilities to exercise their rights, including their sexual and reproductive health and rights. Were there plans to include women with disabilities in the Sexual Health and Responsible Procreation Program? To what extent were services related to sexual and reproductive health affordable and privately accessible for women with disabilities?
Introducing the report, Fernando Gastón Galarraga, Executive Director of the National Disability Agency and head of the delegation, said in recent years, disability had become a matter of priority for the Argentinian Government. It had made budgetary allocations to establish the National Disability Agency, which in its four years of activities had spearheaded policies and actions aiming to achieve full inclusion of persons with disabilities.
The delegation said the national act on mental health set the goal of transforming the care system to ensure the rights of people were guaranteed and treatments were offered at the community level and with the consent of the people concerned. This required new mechanisms to be established. In the last two years, there had been regressive calls to amend the legislation to allow families to place their own relatives in institutions without the consent of the person concerned, and to allow judges to hand down decisions on the placement in institutions of individuals. The State party was not in favour of such amendments.
Any death in a psychiatric establishment, the delegation said, was considered suspicious in judicial terms. There had been reports that psychosurgeries had been practiced on certain individuals with disabilities. State investigations had found that these were experimental practices that were not deep-rooted, and that consent had not been granted by the concerned party but by third parties. The State had issued a resolution calling for these practices to never be repeated.
The delegation also said that the law in force on legal termination of pregnancy considered the right to prior and informed consent of persons with disabilities. Legislation ensured access to information on sexual and reproductive health in accessible formats and quality health services.
In closing remarks, Mr. Gastón Galarraga said that for the first time in Argentina, the State was fully shouldering its role as guarantor of the rights of persons with disabilities. The Convention had been given constitutional ranking, and there was will in economic and political terms to promote those rights. Progress would serve as a basis for the cultural and social transformation that Argentina should pursue to ensure full inclusion of persons with disabilities. Mr. Gastón Galarraga thanked the Committee in advance for its recommendations, which would be fed into the State party’s work.
Vivian Fernández De Torrijos, Committee Rapporteur and Country Co-Rapporteur, in her concluding remarks, said she was disappointed to see that the assistance-based model regularly prevailed over inclusion of persons with disabilities. Ms. De Torrijos expressed hopes that the Committee’s findings would help the State party to reassess the concept of disability though laws and regulations and switch to a human-rights based model of disability. The Committee believed in the Government's goodwill and determination ensure the rights of persons with disabilities of all walks of life were respected.
The delegation of Argentina included representatives of the National Disability Agency; the Ministry of Justice and Human Rights; the Government of the Province of Buenos Aires; the Ministry of Foreign Affairs, International Trade and Worship; and the Permanent Mission of Argentina to the United Nations Office and other international organisations in Geneva.
All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage. Webcasts of the meetings of the session can be found here, and meetings summaries can be found here.
The Committee will next meet in public at 3 p.m., Thursday 16 March to conclude its consideration of the combined second and third periodic report of Peru (CRPD/C/PER/2-3).
Report
The Committee has before it the combined second and third periodic report of Argentina (CRPD/C/ARG/2-3).
Presentation of Report
FERNANDO GASTÓN GALARRAGA, Executive Director of the National Disability Agency and head of the delegation, said in recent years, disability had become a matter of priority for the Argentinian Government. It had made budgetary allocations to establish the National Disability Agency, which in its four years of activities had spearheaded policies and actions aiming to achieve full inclusion of persons with disabilities. Civil society had given impetus to multiple transformations to ensure a better exercise of human rights.
There had been progress in two areas important to persons with disabilities and their families: inclusive federal healthcare and non-contributory pensions for persons with disabilities. Argentina had managed to reverse the terrible inequalities that had been generated due to the lack of financing of federal healthcare. Over 1.7 million persons with disabilities had been reached with State support. In the framework of the inclusive healthcare programme, the National Disability Agency had ensured the financing of services and transfers to institutions that worked with it, as well as managed to increase the amounts provided on a systematic basis. It made sure the payments were made on time and had enhanced cooperation with the 23 provinces and the autonomous city of Buenos Aires. A national fund for the inclusion of persons with disabilities allowed for the transfer of resources to civil society organisations and other stakeholders.
Another key aspect was disability mainstreaming at the Central Governmental level and across the country. To achieve this, the Agency had been strengthened. A training unit had been established, with training benefitting over 2,000 civil servants and private sector workers. A gender unit had been created to ensure the gender perspective was mainstreamed across the work of the Agency. The Government had also established a labour inclusion unit, aware of the need to tackle the social exclusion of persons with disabilities. The Central Government had a plan to support local governments in 200 cities across the country in developing policies that benefitted persons with disabilities.
Progress had been made in fostering greater participation by persons with disabilities and ensuring access to services and State instruments that were essential in the development and exercise of their rights. This implied a transformation of the Agency’s structure and infrastructure and the way it worked jointly with other governmental agencies. A multi-stage plan had also been developed to improve the certification of disability. The State aimed to support persons with disabilities in a more active fashion, especially in acquiring the certificate.
Argentina had been working on the legislative tools at its disposal, issuing several decrees and regulations and seeking to approve a new framework law on disability. The law that was currently enforced dated back to the era of dictatorship and was based on a medical model. The State party wanted to leave this law behind. In 2022, Argentina began a process of engaging in dialogue with all sectors of civil society for the preparation of the new bill. Seven public hearings had been held, over 1,200 speakers heard and 12,000 contributions received. Multiple provinces of different regions had themselves held participatory forums. A draft was now in its final stage. The goal was to incorporate all the progress achieved into the legislation. Challenges remained. There was a need to ensure that policies were implemented in each of the 23 provinces and the autonomous city of Buenos Aires. Progress had been made toward achieving more meaningful implementation of the Convention.
Questions by Committee Experts
AMALIA GAMIO RIOS, Committee Vice-Chair and Country Co-Rapporteur, said Argentina had made great efforts to implement the Convention; creating in 2017 of the National Disability Agency. The Agency had a good budget, which was reflected in the cross-cutting policies of the Ministry of Economy. This was significant progress. The Committee was aware that the State had developed a draft framework law to guarantee the rights of persons with disabilities. Hopefully, this law would be adopted very soon. The State party had worked a great deal on communication, accessibility and training. Assistance for persons with disabilities was provided in their relations with the justice system.
The Committee was concerned about certain delays and setbacks in the implementation of the Convention. Regarding equality before the law, the State party needed to bring article 32 of the civil code in line with the Convention. People known as “facilitators of legal capacity” were making decisions regarding the will and preferences of persons with disabilities on issues such as social security, housing or sexual and reproductive rights. Apparently, measures to change the way in which the State party approached legal capacity were not taken in all fields, being only preponderant for civil and family law domains and not for criminal, labour and administrative law.
Despite the efforts made by the State party, persons with disabilities still faced obstacles in accessing justice. There was a lack of staff trained on human rights, resources, accessible infrastructure and information and procedural reforms at the provincial level.
It was necessary to review court rulings that affected legal capacity. Institutions that were created based on the guardianship model needed to be transformed to create a truly inclusive society. The genuine promotion of individuals’ autonomy was essential. Resources should be allocated to community-based and autonomy-oriented life projects. The judiciary and public prosecutors needed to ensure that there was a support system in place. There were still many people institutionalised on grounds of mental health who had their own resources, but because they were under curatorship, they could not use them.
The new National Civil and Commercial Code introduced support systems and called for ruling and sentences to be reviewed every three years, but many old sentences had not been reviewed; provinces continued to follow standards that were not in keeping with the Convention.
Draft amendments to the mental health law were regressive. Great importance was being given to the psychiatrist again. Under the amendments, judges would have the ability to place people in institutions. “Certain and imminent risk” would be considered as grounds for involuntary internments, which was totally contrary to article 14 of the Convention and the Committee’s Guidelines on Deinstitutionalisation, which addressed situations of emergency. Psychiatrists were unwilling to relinquish control over people with psychosocial disabilities, insisting that they should play a key role in decision-making. These were regressive steps back that a State like Argentina could not allow itself to take.
Current deinstitutionalisation measures were a matter of concern. The so-called assisted cared residences in many cases were still institutions under the control of the State. Residents had to go through group therapy or psychotropic treatments. The Committee welcomed the reform to Law 27/655 of 2021 that prohibited forced sterilization, but was concerned that laws did not give clear emphasis to protection of girls and women with disabilities, who were more vulnerable to discrimination and violence.
A Committee Expert asked what measures were in place to ensure consultations with organisations of persons with disabilities in the development, monitoring and implementation of laws and policies? Did the State support the work and independent participation of organisations of persons with disabilities? What was Argentina doing to support persons with intellectual disabilities to have their own organisations? What measures had been taken to raise awareness on the rights of persons with disabilities?
ODELIA FITOUSSI, Committee Vice-Chair, asked about measures implemented and resources allocated to integrating gender and disability approaches in legislation and programmes dedicated to women, especially regarding violence against girls and women with disabilities. Could the delegation share the data regarding deaths in psychiatric institutions in Argentina, the causes of deaths and measures taken to prevent them?
A Committee Expert said the State party lacked concrete mechanisms to address the needs and perspectives of women and girls with disabilities in national disability policies as well as in national gender strategies and action plans. What measures were in place to conduct impact assessments of gender and disability-related policies, measures and their results; to ensure meaningful and active involvement of women with disabilities in decision making on matters effecting them; and to promote empowerment of women and girls with disabilities to exercise their rights, including their sexual and reproductive health and rights? How were women with disabilities involved in the activities and programmes of the National Women’s Institute and consultative bodies, including the Federal Disability Council?
Another Committee Expert asked how many people with disabilities worked in the National Disability Agency. What action did this agency take when cases of discrimination against persons with disabilities were reported? What was the budget of the Agency? The programme Hacemos Futuro prioritised women who had children with disabilities to enter the workforce. How many women with disabilities had been benefited from this programme? Were there plans to include women with disabilities in the Sexual Health and Responsible Procreation Program?
A Committee Expert asked how the State planned to implement the "Federal Strategy for a Comprehensive Approach to Mental Health"? What would the budget be, and how would it be distributed? What public policies had the State implemented to promote sustainably discharging hospitalised persons, shut down psychiatric institutions and create outpatient care and social inclusion facilities? What measures had the State implemented to address the differential impact that psychiatric confinement had on women, lesbians, transgender and other sexual identities? What measures had been taken to abolish non-consensual sterilisation in accordance with international human rights law? What specific measures had been taken to guarantee that the National Congress promoted equal opportunity and non-discrimination of women with disabilities?
ROSEMARY KAYESS, Committee Vice-Chair, said she was pleased to note that the State party had identified the urgent need to develop specific policies aimed at the inclusion of indigenous peoples with disabilities, and to incorporate an intercultural perspective in State strategies. Had this work commenced? Had the State party identified mechanisms to drive this work across the different ministries? What mechanisms would be established to ensure the active involvement of indigenous people with disabilities in these actions? Was there any law that prohibited discrimination based on disability and guaranteed to persons with disabilities equal and effective legal protection against discrimination? Were there legal provisions that provided persons with disabilities with a right of action for an effective remedy in relation to claims of discrimination against State and non-State actors? What were the types of remedies and redress provided for persons with disabilities? How was Argentina providing support for State and non-State actors in applying their obligations in relation to the principle of reasonable accommodation?
Ms. Kayess added the Committee had received disturbing reports of numerous deaths in mental health centres due to institutional violence, negligence and practices that infringed human rights. Were there independent mechanisms with powers to investigate deaths in mental health facilities, to sanction and punish the individuals and organisations responsible and to recommend corrective actions and a comprehensive reparation framework? Did Argentina’s National Committee for the Prevention of Torture have jurisdiction over mental health facilities, given these facilities were places of detention and deprivation of liberty?
A Committee Expert asked about the multidisciplinary mechanism used in Argentina to register persons with disabilities. If a person with disabilities did not want to hold a disability certificate, did it prevent them from accessing services? To what extent were services related to sexual and reproductive health affordable and privately accessible for women with disabilities?
VIVIAN FERNÁNDEZ DE TORRIJOS, Committee Rapporteur and Country Co-Rapporteur, asked how many indigenous persons with disabilities had benefited from the Indigenous Health Programme? The national agency for fighting discrimination had received the most complaints about discrimination on the grounds of disability, with 20.1 per cent of the cases received in 2017 and 24.14 per cent in 2018 related to disability. How did the State party explain this high rate? Had perpetrators been punished?
Did the State party have any penalties for failure to comply with the national accessibility plan? Although the State party had created a monitoring and oversight committee through Article 20-22 of law 22431, it had not imposed penalties for failure to meet accessibility regulations.
AMALIA GAMIO RIOS, Committee Vice-Chair and Country Co-Rapporteur, asked about measures in place to address the underreporting of gender-based violence when the victims were women and girls with disabilities? How did the State party ensure that appointments on contraception were not affected by prejudice by medical practitioners when the patients were girls and women with disabilities?
A Committee Expert asked how many people in Argentina had disabilities and how disability was assessed. What were the conditions for receiving the single disability card, and how many people held that card? Did the assessment occur only in large cities? Was it purely medical in nature or did it include other specialisations? Did it come free of charge for persons with disabilities?
GERTRUDE OFORIWA FEFOAME, Committee Chair, asked what steps had been taken to incorporate cross-cutting gender and disability perspectives in the formulation of public policies concerning persons with disabilities and women? What progress was made by the Gender Policy Unit within the National Disability Agency and by the Programme “Equiparar”? What efforts were being taken to ensure that all mainstream services, including interpersonal violence reporting and support mechanisms, were fully accessible for women with disabilities? The Committee had received information about the high rate of children with disabilities living in institutions. What measures had been taken by the State party to prevent the institutionalisation of children with disabilities? Could the delegation provide information about plans to develop a comprehensive strategy aimed at guaranteeing the rights of children with disabilities, in particular ensuring their right to live with their family and to protect them against maltreatment, neglect and abandonment?
Responses by the Delegation
FERNANDO GASTÓN GALARRAGA, Executive Director of the National Disability Agency and head of the delegation , said Argentina was one of the first countries to ratify the Convention. The country had given it constitutional rank. Since then, disability rights had been mainstreamed in policies. Initiatives on disability were being implemented in a cross-cutting fashion, and were having a direct impact in areas inside and outside the direct remit of the National Disability Agency.
Dialogue was a priority. It allowed the State to achieve consensus to deliver policies on disability. Dialogue mechanisms had led to the creation of a bureau for dialogue with civil society comprising organisations from 24 State jurisdictions. Other institutions were working at a national level in the field of disabilities. Many had taken part in the alternative reporting process. The National Disability Agency had been working with the Advisory Committee to promote the participation of civil society in that Committee.
The State was in a transitional phase regarding certification. Work was ongoing to develop a certification system in line with the Convention. There were currently 15 disability certification boards in the country, comprising multidisciplinary teams. The National Disability Agency supported each of the provinces to strengthen their mechanisms and bring their certification processes closer to persons with disabilities. The capacity and technical skills of the certification boards had been strengthened, and a platform had been created to make it easier to follow up on the certification procedure. The goal was to implement this process throughout the country, reaching places where certification procedures had not been implemented yet. The State party aimed to increase its presence and promote a community-based life rather than institutionalisation. The rights-based and social approaches to disability needed to be more prevalent in certification work. Measures had been taken to intensify the roll out of the plan.
The delegation said there was a bill before the Parliament proposing mainstreaming disability in the law on the comprehensive protection of the rights of children. The State Secretariat for children, adults and families had conducted a survey on children with disabilities living in institutions or similar facilities. The institutions had carried out intensive work to promote the adoption of children with disabilities and combating prejudice. A monitoring programme had been implemented to ensure that children in institutions or residential facilities had autonomous life plans. The Secretariat, in conjunction with the National Disability Agency, had conducted training courses for teams tasked with implementing the law on comprehensive protection of children and young persons’ rights. A particular social benefit was in place for the children of victims of feminicide, and over 50 young people were receiving this benefit. A forum for inclusion, chaired by Argentina’s Secretariat, was established to mainstream disability through public policy. Argentina was conducting a study to detect the needs of indigenous people with disabilities.
The law in force on legal termination of pregnancy considered the right to prior and informed consent of persons with disabilities. Legislation ensured access to information in accessible formats and quality health services. Persons with disabilities needed to provide their informed consent for any surgery that prevented pregnancy. The justice assistance programme for persons with disabilities had special programmes offering support and advice for women with disabilities that were victims of violence. Argentina had a national institution for fighting discrimination, racism and xenophobia that conducted surveys and studies, designed helpful policies and programmes and raised awareness on the needs detected.
The delegation recognised the need to have an intersectional approach to disability and gender at the national level. The State party had created the Ministry of Women and Diversity in 2020. This Ministry promoted inclusive education programmes, including for combating violence against women and the lesbian, gay, bisexual, transgender and intersex community. Training and technical assistance was provided to different State entities on the intersecting approach between disability and gender. A programme was in place to formalise domestic and other informal work and promote the employment of women, the lesbian, gay, bisexual, transgender, intersex and queer community, and women with disabilities. A guide on gender-based violence had been rolled out by the National Disability Agency. A hotline for gender-based violence victims had been launched. Online courses on gender and mental health and workshops on sexual and reproductive rights had been held. The State had promoted several awareness campaigns to promote a positive image of persons with disabilities in different walks of life. A national week of inclusion was established. Actions had been taken to enhance accessible communication during the COVID-19 pandemic. Argentina had worked with banks to include strategies on accessibility, issued recommendations regarding the media, and worked on improving the accessibility to competitive recruitment for jobs in the public administration.
The law on mental health had been in force for over 12 years. In 2022, the President had announced a series of measures linked to the implementation of the national mental health act. On that occasion, he signed a decree to increase the budget allocated to mental health by four billion Argentine pesos. This was a significant increase but fell short of the State’s goal to allocate 10 per cent of the country’s budget to mental health. An inter-ministerial mental health group had been established with additional funds.
The national mental health review body, an independent body with representatives of related civil society organisations, was tasked with monitoring the implementation of the mental health law and the situation in institutions. The geographic scope of this review body was limited, as it operated in the city of Buenos Aires, however local provincial level review bodies were established in over half of Argentina’s provinces, offering the same guarantee of participation of persons with disabilities. The national act on mental health set the goal of transforming the care system to ensure the rights of people were guaranteed and treatments were offered at the community level and with the consent of the people concerned. This required new mechanisms to be established. In the last two years, there had been criticism of the law within the media and calls for amendments. There were regressive calls to allow families to place their own relatives in institutions without the consent of the person concerned, and to allow judges to hand down decisions on the placement in institutions of individuals. The State party was not in favour of this, believing that the internment of individuals should not be a judicial process but done based on the decisions of a multidisciplinary team. Involuntary internments required a control mechanism, pursued by the abovementioned review bodies. A resolution had established that any death in a psychiatric establishment should be considered suspicious in judicial terms. The State party was convinced that psychiatric institutions needed to be shut down to prevent violence within them. A different form of care needed to be established, for which more work was required, including on addressing resistance.
Swift progress was being made toward deinstitutionalisation in the province of Buenos Aires, which was home to 38 per cent of the country’s population. There were 1,810 people living in the province’s four institutions when the provincial government took up its function, living in critical, even tragic, conditions. The provincial government had made a firm commitment to address this situation. It was working on itinerant units to prevent institutionalisation, placing emphasis on a community-based approach rather than a medical approach. In the province, programmes were in place that aimed at rehabilitating people and making institutions community oriented. There had been no new placements in institutions since 2020. A periodic monitoring mechanism for the reform was in place. There had been a 35 per cent drop in the number of people residing in chronic wards, and 632 had been deinstitutionalised based on a support-oriented model.
Questions by Committee Experts
AMALIA GAMIO RIOS, Committee Vice-Chair and Country Co-Rapporteur, asked how many children with disabilities had been adopted. How many women with disabilities had been victims of femicide? Argentina was still building psychiatric hospitals in some provinces and regrettably the community support program had not been implemented. Why had the target of closing all psychiatric hospitals by 2020 not been met?
A Committee Expert asked about systems available to facilitate supported decision-making. How long could a person have their legal capacity removed? Once a person’s legal capacity was removed, could they ever get it back? If the person wanted to challenge a court decision, could they have assistance to do this?
ODELIA FITOUSSI, Committee Vice-Chair, asked what support services were available for the realisation of a legal service that was in line with the Convention? What training did service providers receive, and what resources were allocated to providing services with high availability and optimal quality? Had Law 26/480, which incorporated home assistants to Law 24/901, already been regulated? The construction of halfway houses was contrary to the Committee’s General Comment Five on article 19 of the Convention.
A Committee Expert asked about the results of the work of the group in charge of analysing and proposing measures for the elaboration of a Specific Protocol on the Care of Persons with Disabilities in the Framework of Armed Conflict and Humanitarian Action.
ROSEMARY KAYESS, Committee Vice-Chair, asked if measures had been taken to prohibit harmful practices that reportedly were conducted in Argentina’s mental health facilities, such as seclusion, mechanical and chemical restraints, psychosurgery and electroconvulsive therapy.
A Committee Expert asked about the total budget for mental health. Could the State party explain about specialised capacity development programmes for judges on how to reflect on the concept of legal capacity as set forth in the Convention? Could the State party expand on the situation of prisoners with disabilities?
Another Committee Expert said article 12 of the Convention did not allow for the restriction of legal capacity. To the contrary, it required support measures to be implemented to allow persons with disabilities to exercise legal capacity. Did the State party envisage any changes in the amended civil code to provide for real support measures without restriction of legal capacity? Could the judiciary be expected to interpret in compliance with article 12?
A Committee Expert asked what plans were in place to ensure that once a certificate had been issued to a person with a permanent disability, it would not expire?
GERTRUDE OFORIWA FEFOAME, Committee Chair, asked about steps taken to ensure the National Committee for the Prevention of Torture had been provided with training on the rights of people with disabilities. How did this Committee monitor the conditions of deprivation of liberty of persons with disabilities? How many complaints had been made by people with disabilities and how had these been addressed? Did the National Plan of Action against Violence for Gender Reasons 2020-2022 consider the challenges facing women with disabilities? What measures had been taken to train police, prison and judicial officials, social workers, health professionals and other interlocutors working with persons with disabilities on identifying and responding to cases of exploitation, violence and abuse?
Responses by the Delegation
FERNANDO GASTÓN GALARRAGA , Executive Director of the National Disability Agency and head of the delegation, said eight per cent of the National Disability Agency’s staff were persons with disabilities. It comprised six national directorates, each dealing with specific tasks: non-contributory pensions; the administration of the federal health programme; certificate procedures; the registration of service providers; mainstreaming the disability perspective throughout the State’s work; the management of the national fund for the inclusion of persons with disabilities. The Agency was the result of a merger of four former agencies and was being strengthened in its capacities. While the certification system was currently being modernised, free car stickers could be obtained online as well as an online certificate, which was as valid as a paper one. Qualitative and quantitative data on the certification system was being collected to obtain information about the situation of persons with disabilities.
The National Comprehensive Risk Management System and the Civil Protection system was being developed. A national strategic plan for managing disasters and risk situations should come into force for the period 2024-2029 and the Agency was working to include a disability perspective, while engaging in consultations with civil society. Access to information during crises was being discussed. Many Agency services had been developed in response to requests from civil society.
The delegation said Argentina had incorporated into gender-based violence legislation aggravating circumstances when the act affected the rights of women in the lesbian, gay, bisexual, transgender and intersex community, or women with disabilities. The national plan to address gender-based violence included four dimensions: prevention; a holistic response for victims; protection and strengthening of access to justice for victims; and managing information, monitoring and transparency. A hotline for reporting gender-based violence and a system to conduct video calls with sign language interpreters were in place. According to Supreme Court figures, in 2021, there had been 251 victims of femicide, around 20 of whom were women with disabilities.
Equality and non-discrimination were promoted in the draft law on protecting the rights of persons with disabilities. In this law, the denial of reasonable accommodation was treated as discrimination on the grounds of disability. The national agency for combating discrimination, racism and xenophobia had a victim support unit, which in the latest statistics had recorded about 7,200 complaints, 18 per cent of which concerned disabilities. Argentinian law prohibited marriage under the age of 18. About 7.9 per cent of all children and adolescents living in residential facilities had certified disabilities. Among the children and adolescents eligible for adoption, there were 2,199 with disabilities, or 18.75 per cent of the total.
The National Mental Health Law foresaw a clear timeline for achieving the definitive replacement of psychiatric hospitals and outlined a process to establish other mechanisms to deal with mental health crises. That goal had not been achieved yet. In 2007, a civil society report had found that Argentina’s psychiatric institutions hosted 25,000 people. In 2019, the Ministry of Public Health had undertaken a similar survey, finding 12,000 people in institutions. Despite uncertainty about the figures, a reduction in the number of long-term placements in psychiatric hospitals was evident. The number of support mechanisms available for living in the community and providing care for mental health in a comprehensive way had been increased. The city of Buenos Aires was a clear example in this regard. About half of the population in such institutions were not able to dispose of their income as they wished. About 5,000 people out of the 12,000 in institutions owned housing but could not dispose of it. Support needed to be provided so that the judiciary changed its structures and practices to bring its work in line with the Convention. Work needed to be done to make sure these people in institutions could dispose of their means freely. The Committee’s Deinstitutionalisation Guide was of great assistance to Argentina. “Halfway houses” were being established to foster autonomy.
There had been reports that psychosurgeries had been practiced on certain individuals with various disabilities. In response, the State party had sought information from hospitals and courts linked to these situations. The State’s investigation had found that these were experimental practices that were not deep-rooted, and that consent had not been granted by the concerned party but by third parties. The State had issued a resolution calling for these practices to never be repeated, for the Convention to be considered, and for full consent to be secured before any intervention happened. The State party was very critical of electroconvulsive therapy. The review body had made very clear recommendation for such practices not to be repeated. The human rights secretariat and the national review body had not received any complaints about the use of such therapy in Argentina. If it existed as a practice, it was a marginal one, on its way out. Regarding the use of psychotropic drugs, it was essential to ensure that all remedies were used to deescalate crises before surgery, mechanical restraints or restraining drugs were used. These mechanisms were last resorts. They were only used when necessary for preventing the person concerned from harming others, and had to be overseen by the monitoring bodies.
Based on a dialogue with civil society and the Ombudsman, Argentina had committed to developing a protocol aimed at raising barriers in the penitentiary and criminal justice systems. The Committee on the Prevention of Torture undertook monitoring exercises at mental health institutions based on its protocol and in agreement with the official review body. Argentina had a protocol for intervention by security forces that was designed to prevent the use of force in crises situations relating to mental health. Over 1,200 police officers had been trained on the protocol. In La Pampa, a woman with a hearing disability had been deprived custody of her child. Information was being collected to prevent repetition.
The civil and commercial code introduced amendments to support autonomy and foster decisions that corresponded to the preferences of persons with disabilities. Amendments specified that legal capacity in the provinces and at the local level should be guaranteed, and that the autonomy and preferences of persons with disabilities should be respected. When it was not possible to ascertain the preferences of the person, the best possible interpretation should be observed. Disability should not be in any case grounds for restricting the legal capacity of a person. It was proposed that judges reviewed all rulings on restrictions of legal capacity every three years. Argentina was developing a project to promote the exercise of the legal capacity by persons with disabilities. Proposals for reasonable accommodation in various legal systems had been drawn up. Legal counselling and legal defence were free of charge for persons with disabilities when they did not have resources to pay for their lawyer. A national observatory on disability in the justice system had been established. It called on judges dealing with cases in involving persons with disabilities to ensure reasonable accommodation be provided and the disability perspective be considered in expert opinions. The comprehensive programme for persons with disabilities in places of detention aimed to set appropriate standards for treatment and the exercise of rights by persons with disabilities in the prison system.
FERNANDO GASTÓN GALARRAGA, Executive Director of the National Disability Agency and head of the delegation , said the system of benefits for persons with disabilities was established by a law the predated the adoption of the Convention. One of the most significant challenges was to bring it in line with the Convention to ensure that services promoted independent living. The National Disability Agency needed to manage the registration of such services, classify the institutions providing those services and provide guidelines to them.
Questions by Committee Experts
AMALIA GAMIO RIOS, Committee Vice-Chair and Country Co-Rapporteur, asked about the medical opinions given by psychiatrics in legal proceedings involving persons with psychosocial disabilities. The Committee had been informed of a draft bill to reform the civil code in line with the Convention in this area. What was the State party doing to take this forward? Had persons who had performed psychosurgery with guardians’ approval been punished? What measure were in place to support victims?
VIVIAN FERNÁNDEZ DE TORRIJOS, Committee Rapporteur and Country Co-Rapporteur, asked how many persons with disabilities had benefited from the Ministry of Health’s programme for indigenous groups? What measures were in place to ensure that services provided from the private sector fulfilled regulation 3804 on law 3401, setting out that long-distance transport should be free of charge for persons with disabilities?
ODELIA FITOUSSI, Committee Vice-Chair, asked about measures that had been taken to regulate the suitability and accessibility of all educational environments to ensure inclusive education. What training was given to those who accompanied the students? How many teachers with disabilities taught in schools? What actions was the State party taking to include the disability perspective in Law 25/929, which established the parameters of humanised childbirth? What actions was the State party taking to make the 100-day plan compatible with the non-contributory pension?
A Committee Expert asked about the use of the VOXZOGO drug in the treatment of persons of small stature. Of the 80 people that had started treatment, 16 had to take their cases to court to receive financial support. What the monitoring mechanism was in place regarding treatment of children of small stature? What measures had been taken by Argentina to acquire this medicine under an exceptional approval regime? Would the State party find a simplified form of administering this medicine to those who needed it? How was the State party working to eliminate the medical model being applied to persons of small stature? What measure were in place to ensure that rehabilitation services were accessible to persons of small stature? Only 20 per cent of persons with disabilities were able to receive specialised health services when necessary. Could the State party ensure make access possible without having to go through the courts? How was the State party supporting athletes with disabilities?
A Committee Expert expressed concerns about removal of children from mothers with disabilities. What measures were in place to ensure that any processes that might result in the separation of children from parents with disabilities were in keeping with the Convention? How was support being provided to parents with disabilities so the best interests of the child could be fulfilled?
Another Committee Expert asked about measures in place to enhance the accessibility of mainstream schools. Could the State party share its plans to phase out special education? What awareness raising measures were in place to disseminate among parents the concept of inclusive education under the Convention and to enhance the capacities of the education workforce? Were there measures to repeal provisions restricting persons with disabilities’ rights to vote and stand for election?
ROSEMARY KAYESS, Committee Vice-Chair, asked the delegation to provide information on whether existing data from the national census was utilised to establish accurate information on the situation of persons with disabilities, including for women and children with disabilities and for those who were migrants, Afro-descendants, indigenous or members of the lesbian, gay, bisexual, transgender and intersex community? Such data would inform the development of effective policies and programs.
A Committee Expert asked the State party to expand on its agreements with the International Monetary Fund on budget lines related to disability issues. What criteria was the State party going to use to ensure accurate statistics regarding persons with disabilities?
Another Committee Expert asked about the number of schools that received students with disabilities. How were persons with disabilities included in mainstream education? Were there individual plans in classrooms adapted to the disabilities of each student?
VIVIAN FERNÁNDEZ DE TORRIJOS, Committee Rapporteur and Country Co-Rapporteur, asked how the State party monitored the healthcare services provided to ensure persons with disabilities had access to the services they required. What was the State party envisaging in terms of affirmative actions to achieve implementation of the rights of persons with disabilities within the workplace, both in the private and public sector?
AMALIA GAMIO RIOS, Committee Vice-Chair and Country Co-Rapporteur, asked about actions the State party was taking to repeal legislation on impediments to marriage, which specified “the permanent or transitory lack of mental health” as an impediment to marriage. Did the State party have a mechanism in line with the Paris Principles to monitor the implementation of the Convention?
A Committee Expert asked who could issue a legally binding statement on the will of the persons with disabilities, in cases when they could not give such a statement themselves?
Another Committee Expert asked about extent to which the national human rights institute acted in full autonomy and guaranteed the principle of diversity by taking persons with disabilities in its membership and staff.
Responses by the Delegation
FERNANDO GASTÓN GALARRAGA , Executive Director of the National Disability Agency and head of the delegation, said the number of students with disabilities in special education had decreased and enrolment rates in mainstream schools were higher. Education was under the remit of the 24 provinces; efforts to ensure progress in inclusive education was needed. Several actions had been taken to encourage inclusive educations, including continuous training for teachers and the invigoration of a network of inclusive universities. However, stigma needed to be overcome. Individual projects were now in force. Work on special tools for blind students was ongoing.
Labour exclusion existed. Only nine per cent of persons with disability certificates who were of working age were employed. A joint work plan with the Ministry of Labour was being finalized. The National Disability Agency was also working with private sector companies to promote inclusion in employment of persons with disabilities, through training and purchasing assistive devices. There were no quotas in place for the private sector, only for the public sector. A “responsible labour tool” had been developed to attract persons with disabilities to continue training for entry into the labour market.
The Agency was working to modernise the decree on the entity responsible for the provision of basic services. Another new law aimed to solve issues with the system of non-contributory pensions in Argentina. Different methods had been used to increase the participation of persons with disabilities in voting, including through making sure the electoral process was fully accessible and security and polling officers were fully trained. An app was being developed to be used to identify and address barriers and boost the participation of persons with disabilities in electoral processes.
The delegation said funding was being provided for community-based cultural activities. Measures were in place to promote inclusion in sport, including at the local level. Around 20 per cent of the grants given to individuals for sports were given to persons with disabilities, and 44 per cent were for Paralympic activities.
The Secretariat for Sport, provincial sporting administrations and the National Federation aimed to foster access to sport, providing training in sport for children and adolescents. 129 sport schools had been established.
A law had established free land transport for persons with disabilities. Discussions were underway to improve implementation of an e-ticketing system and make e-tickets accessible to persons with disabilities. Two agencies had been established to monitoring the implementation of inclusive policies to ensure that persons with disabilities could access free transport within and between cities.
The State party shared the Committee’s view on the severity of events linked to psychosurgeries. A criminal proceeding was underway; sanctions and reparation measures would follow. Separation of children from parents with disabilities had occurred. A protection system was in place for children. The State party was trying to promote understanding of the best interests of the child, including though training. The election code prohibited the exclusion of persons with disabilities from the voting process. Amending the electoral code required difficult compromises. The new act on disability would stipulate that on no grounds could persons with disabilities' voting rights be restricted. The mental health law needed to be implemented across the country.
The delegation paid tribute and expressed eternal gratitude to Franco Rotelli, following the recent news of his passing. Dr. Rotelli had spearheaded Italian psychiatric reform, and was a global leader who had dedicated his life to the protection of rights of persons who used mental health services. Dr. Rotelli had cooperated with Argentina in the preparation and adoption of the mental health law.
A new law on disability sought to guarantee the right to a humane birth. The results of the national census were used in a cross-cutting fashion to foster the development and implementation of public policies.
Closing Statements
FERNANDO GASTÓN GALARRAGA , Executive Director of the National Disability Agency and head of the delegation, said that for the first time in Argentina, the State was fully shouldering its role as guarantor of the rights of persons with disabilities. The Convention had been given constitutional ranking, and there was will in economic and political terms to promote those rights. 40 years ago, the dictatorship came to an end. During the dictatorship, persons with disabilities campaigned for transformation, for the right to exercise their human rights and for better living conditions. Many were disappeared, tortured or lost their lives. The delegation’s members had been inspired by their courage. Reforms were a good tribute to those who had come before. Progress would serve as a basis for the cultural and social transformation that Argentina should pursue to ensure full inclusion of persons with disabilities. Mr. Gastón Galarraga thanked the Committee in advance for its recommendations, which would be fed into the State party’s work.
VIVIAN FERNÁNDEZ DE TORRIJOS, Committee Rapporteur and Country Co-Rapporteur, congratulated the delegation of Argentina on the very constructive dialogue. She said she was disappointed to see that the assistance-based model regularly prevailed over inclusion of persons with disabilities. Persons with disabilities took part in civil society organisations, but were not meaningfully involved in State decisions on public policies on disabilities. The National Observatory on Disability should not fall under the umbrella of the National Disability Agency, because it could not be independent. Too many people were deprived of their legal capacity, thus could not enjoy their human rights. Ms. De Torrijos expressed hopes that the Committee’s findings would help the State party to reassess the concept of disability though laws and regulations and switch to a human-rights based model of disability. The State party should not base its policies on handouts of pensions. It was key that organisations of persons with disabilities were taking part in the State’s new administrative bodies. The Committee believed in the Government's goodwill and determination to move on from past situations and ensure the rights of persons with disabilities of all walks of life were respected.
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CRPD23.006E