COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES REVIEWS THE REPORT OF SPAIN

The Committee on the Rights of Persons with Disabilities today concluded its review of the combined second and third report of Spain on its efforts to implement the provisions of the Convention on the Rights of Persons with Disabilities.

Presenting the report, Maria Luisa Carcedo, Ministry of Health, Consumption and Social Welfare of said that the country continued to strengthen its normative and legal framework to advance the full social participation of persons with disabilities. The right to vote was now guaranteed to all persons with disabilities with the recent passage of the Spanish Electoral Law, which conferred the right on approximately 100,000 individuals whose right to vote had been restricted by a court ruling. Spain was in the process of reforming the constitutionally-based concept of disability into one based on human rights and was also replacing the laws on substitute decision-making by judicial order with a system based on the respect for the will and preferences of persons with disabilities who had the sole right to make their own decisions. Spain had taken steps to guarantee the accessibility in all new residential buildings and in public sector websites and applications, and work was ongoing with regional governments to develop a protocol on the accessibility of the 112 emergency service number.

Rafael Muguruza, Defensor del Pueblo of Spain, regretted that the legislation on supported decision-making had not yet been adopted and urged more efforts to increase public awareness on the disability issues.

Jesus Martin Blanco, Independent Monitoring Framework of Spain, said that Spain must ensure the remedy for all violations of the human rights of persons with disabilities, including forced sterilization and involuntary internment, and denounced the lack of rigorous effort in implementing inclusive education.

In the discussion that followed, the Committee Experts welcomed the guarantee of the right to vote for all persons with disabilities and the efforts to implement the Committee’s concluding observations. The concern, however, remained over some legislative and policy measures which did not comply with the human rights-based model of disability, they noted, asking about efforts to bring all the laws in line with the Convention. The Experts specifically mentioned the structural pattern of discriminatory exclusion and educational segregation on the grounds of disability, which they said particularly affected persons with intellectual and psychosocial disabilities and those with multiple disabilities. Spain should urgently repeal the laws allowing for forced sterilization of women and girls with disabilities, including forced abortions, and forced hospitalization and treatment.

The Experts further denounced the public funding for the construction of new residential institutions for persons with disabilities instead of investing in personal assistance, accessible services and housing in community, and employment in an open labour market. The Committee was gravely concerned that over 60 per cent of children with disabilities were in residential care and asked about measures and systems in place to prevent the separation of children with disabilities from their families. The Experts also reiterated the Committee’s long-standing concern about the draft Additional Protocol to the Oviedo Convention on Human Rights and Biomedicine, which had been tabled for discussion in the Council of Europe’s bioethics committee, and asked whether Spain intended to oppose its adoption.

In her concluding remarks, Ms. Carcedo reaffirmed that Spain would continue to break down the barriers to the effective realization of the right for all, with a focus on persons with disabilities, which was a question of justice.

Mr. Muguruza of the Defensor del Pueblo of Spain thanked the Committee for the invitation and was looking forward to the Committee’s final conclusions and recommendations. Mr. Blanco of the Independent Monitoring Framework of Spain expressed hope that the Committee’s recommendations would improve the development of policies and eliminate the discrimination against persons with disabilities in Spain.

Rosemary Kayess, Committee Co-Rapporteur for Spain, in her concluding observations, urged Spain to use its reform processes to embrace the transformation of the existing laws, policy and practice, and to pay particular attention to the critical areas of non-discrimination and legal capacity, freedom from all forms of violence and exploitation, the protection from neglect and abuse, and the realization of the rights to live independently and be included in the community.

Danlami Umaru Basharu, Committee Chairperson, in his conclusion expressed hope that the Committee’s concluding observations would guide Spain in the implementation of the Convention throughout its territory.

The delegation of Spain consisted of the representatives of the Ministry of Health, Consumption and Social Welfare; Ministry of Foreign Affairs, European Union and Cooperation; Ministry of Justice; Ministry of Interior; Ministry of Development; Ministry of Education and Professional Training; Ministry of Labour, Migrations and Social Security; Ministry of the Presidency, Relations with the Courts and Equality; Ministry of Territorial Policy and Public Function; Justice and Disability Forum; the Attorney General's Office; Junta of Castile and León; and the representatives of the Permanent Mission of Spain to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of Spain at the end of its twenty-first session on 5 April. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.

The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 3 p.m. on Tuesday 19 March to begin the consideration of the initial report of Senegal (CRPD/C/SEN/1).

Report

The Committee is considering the combined second and third report of Spain (CRPD/C/ESP/2-3).

Presentation of the Report

MARIA LUISA CARCEDO, Minister of Health, Consumption and Social Welfare of Spain, in the introduction of the report, recalled that Spain had been the second country to appear before the Committee and was now the first one to be reviewed for the second time, which was an evidence of the respect and commitment the country accorded to the Convention on the Rights of Persons with Disabilities. Spain continued to strengthen its normative and legal framework to advance the full social participation of persons with disabilities and in 2013, the country had been awarded the Franklin D. Roosevelt International Disability Rights Award, the highest recognition a country could receive for its disability policies. With the reform of the Spanish Electoral Law in December 2018, the right to vote was now guaranteed to all persons with disabilities, including for approximately 100,000 individuals whose right to vote had been restricted by a court ruling. Spain was getting ready for its general elections on 28 April and all persons with disabilities were now included in the list of registered voters. The draft amendment to the medico-rehabilitative concept of disability in article 49 of the Constitution had been advanced in December 2018; it proposed a rights-based concept of disability, strengthened the protection of rights of persons with disabilities, and expressly included the participation of their representative organizations in the adoption of public policies that affected them.

Furthermore, Spain had approved a draft bill to reform the laws on substitute decision-making by judicial order and replace them with a system based on the respect for the will and preferences of persons with disabilities who would now be responsible for making their own decisions, while the guardianship would be preserved for minors without parental authority. Although the reform had not yet been completed, both the Office of the Prosecutors and the judiciary were directly applying the provisions of the Convention, stressed the Minister, who also stressed the integration of inclusive education in the draft organic law on education. In addition, the authorities had been taking concrete steps to promote the realization of the right to inclusion in mainstream education, the respect for the principle of universal access, raising awareness on diversity in school settings, and providing for personalized school assessment with students in need of specific support.

Spain had taken steps to guarantee the accessibility in all new residential buildings and in public sector websites and applications, and work was ongoing with regional governments to develop a protocol on the accessibility of the 112 emergency service number. 3 May had been declared the national day of the International Convention on the Rights of Persons with the Disabilities to celebrate the shift to a rights-based conception of disabilities that had come with the signing of this instrument. The country aimed to incorporate the gender approach in all its policies and repeal obstacles to the participation of women and girls with disabilities said the Minister and reaffirmed that all the progress notwithstanding, it was important not to lower the guard, and continue to work towards a society what was even more solidary and just.

RAFAEL MUGURUZA, Defensor del Pueblo, said that the institution was accredited in line with the Paris Principles and had the mandate to ensure the promotion and protection of human rights and fundamental freedoms established in the Constitution. The Defensor was independent in all its actions and tasked to monitor the activities of the public sector in all fields and at all levels. It was regrettable that the legislation on supported decision-making had not yet been adopted, he said and noted that the efforts to increase public awareness on the disability issues needed to be strengthened.

JESUS MARTIN BLANCO, Independent Monitoring Framework of Spain, said that the mechanism monitored the implementation of the Committee’s concluding observations and noted that 80 per cent of those had not been implemented. Spain must ensure that any violations of human rights of persons with disabilities including forced sterilization and involuntary internment of persons with psychosocial impediments, were remedied and keep the Justice and Disability Forum operational. Mr. Blanco denounced the lack of rigorous effort in implementing inclusive education and the lack of resources and regulations for the provision of personal assistance. Human rights of persons with disabilities continued to be a precarious reality with grave shortcomings and anomalies, he said.

Questions by the Committee Experts

JONAS RUSKUS, Committee Co-Rapporteur for Spain, at the outset welcomed Spain’s efforts to implement the Committee’s concluding observations and to improve the rights of persons with disabilities, including guaranteeing the right to vote to all persons with disabilities.

The concern remained that some legislative and other measures did not comply with the human rights-based model of disability, he said, mentioning in particular the structural pattern of discriminatory exclusion and educational segregation on the grounds of disability, which particularly affected persons with intellectual and psychosocial disabilities and those with multiple disabilities, and the continued legality of forced sterilization of women and girls with disabilities, including forced abortions. The Rapporteur also denounced the public funding for the construction of new residential institutions for persons with disabilities instead of investing in personal assistance, accessible services and housing in the community, and employment in an open labour market.

Mr. Ruskus reiterated the Committee’s long-standing concern about the draft Additional Protocol to the Oviedo Convention on Human Rights and Biomedicine, which had been tabled for discussion in the Council of Europe’s bioethics committee, and asked whether Spain intended to oppose its adoption.

Other Experts asked about the involvement of representative organizations of persons with disabilities in all the decisions that affected them, and specifically the involvement of persons with intellectual disabilities and their representative organizations. They requested data and information of children with disabilities living in institutions and the measures taken to protect them against violence, including gender-based violence, and urged Spain to abolish the laws allowing involuntary treatment and institutionalization.

What measures were being taken to incorporate the voice of women with disabilities and persons with psychological disabilities in defining media policies and what sanctions were imposed against stigmatizing persons with psychosocial disability in mass media? What was being done to increase the awareness of the society and persons with disabilities themselves on disability issues and rights and on the Convention?

The Experts also raised a number of questions on the legislative framework, raising concern that the provisions of the Convention had not been taken into account during the revision of a number of laws and asked about steps planned to bring all the legislation in line with a human rights-based approach to disability. Was the Contention directly applicable in the domestic legal order and what was the hierarchy between its provisions and the statutory law?

The delegation was asked about complaint mechanisms for rights violations for persons with disabilities, whether the denial of reasonable accommodation was dealt with as a form of discrimination, and how the legislation addressed multiple and intersecting forms of discrimination against persons with disabilities. What was the status of the law on abortion?

The Experts raised concern about the continued sterilization and forced treatment and asked whether the legal reform included the guarantees that all mental health care services were provided with free and informed consent of persons with disabilities. were persons with disabilities and their representative organizations included in the discussions on forced sterilization and involuntary hospitalization and treatment?

How was reasonable accommodation effectively implemented in national, regional and local levels in the area of employment of persons with disabilities and services were available for parents with disabilities to raise children in the family? The Experts asked about the achievements of the first national plan on the accessibility and about specific measures to ensure that all buildings and other places open to the public had Braille and easy to read information and that sign language interpretation was available. The definition of reasonable accommodation was currently limited to adaptation of buildings, the Experts remarked and asked about a possibility of utilising public procurement policy to enhance the accessibility.

Replies by the Delegation

Responding to questions concerning the status of the Convention in the domestic legal order, the delegation said that according to the Constitution, all international treaties ratified by Spain were incorporated into the national legislation and had the same value as the national law. All conflicts were resolved by the Constitutional Court, and the courts took into account the provisions from international treaties in their decisions on all the cases involving human rights violations. The texts of the Constitution and the Convention were available in easy read formats.

Spain was a signatory to the Oviedo Convention on Human Rights and Biomedicine, said the delegation, noting that any modifications including draft Additional Protocol, would have to respect the Spanish Constitution and its legal framework.

The reform of the administrative procedures provided for the participation of citizens in developing the laws and policies and it also guaranteed a prior public consultation on potential areas for reform or addressing any disputes that might exist in the society. The National Disability Office received and followed up on the complaints from persons with disabilities, entered into communications with various institutions and local level bodies, and made recommendations including legal procedures or sanctions.

Human rights were treated comprehensively and on an equal footing for all citizens, and the Government took measures to fights against all forms of discrimination. It had opened a telephone line to denounce cases of discrimination, while the Office of Equal Treatment and Diversity had been set up to promoting equal treatment and non-discrimination as a cross-cutting goal. The disability was now taken into account in cases of discrimination on the grounds of sex. Spain had implemented the recommendations it had received to combat discrimination against women with disabilities and had carried out numerous studies to define measures and actions in this area. Disability was an aggravating factor in all crimes, including online hate speech.

Hate crime was a serious crime, the delegation said, adding that an office to combat hate speech within the Ministry of Interior had been set up and had developed an action plan to deal with the issue.

A “pact against gender-based violence" had been adopted in 2017, based on a political consensus. Its roadmap to 2022 included a series of measures to fight this phenomenon, including special measured focused on women and girls with disabilities. The delegation stressed that all children, including children with disabilities, were protected from gender-based violence by the law. Deploring the high number of gender-based violence against women and girls with disabilities, the delegation stressed that the law had reversed burden of proof in such cases and added that a study was underway on violence against women and girls with disabilities in order to strengthen their protection.

A delegate noted that 36 per cent of children with disabilities in care were in families and 64 per cent were in the institutions and recognized that their situation was worse than that of children without disabilities in institutional care. The Office of the Attorney General and the Defensor del Pueblo oversaw all the residential institutions; they had complete autonomy to visit and inspect and to prosecute any violations found.

In response to questions asked about forced hospitalization and treatment, the delegation said that Spain was in the process of introducing a set of guarantees for all the persons without legal capacity regardless of the disability. All such individuals were assigned a defence attorney in order to guarantee their right to a free consent. Involuntary internment was an exceptional emergency and temporary measure used when less restrictive measures failed to work. Did Spain intend to repeal all legal provisions allowing forced institutionalization and forced treatment based on disability?

The delegation stressed the efforts to ensure the full recognition of persons with disabilities to their sexuality and said that the forced sterilization only occurred in the most extreme cases. The procedure could only be authorized by courts on the grounds of the best interest of the person with disability and everything was done to avoid that the procedure could be likened to eugenics. The procedure could only be initiated by the person itself, her of his family or guardian decided to do so, and not at the behest of any state body. The court authorization was issued only after two specialists testified and guaranteed that the procedure was in the best interest of the person. Last year, 51 forced sterilizations had been authorized.

The law on palliative care and the law on euthanasia had not yet been examined, given the dissolution of Parliament last month before the convening of early parliamentary elections on 28 April 2019.

On the matter of awareness raising, in addition to declaring 3 May as the national day of commemoration of the Convention on the Rights of Persons with Disabilities, Spain had declared 4 June as the day of the Spanish sign language. There were also multiple outreach campaigns, such as the latest campaign against stigmatization of persons with intellectual disabilities, as well as training activities the public sector employees, including law enforcement officers, members of the judiciary, and the prosecutorial services.

The law on the accessibility applied to public and private buildings and to housing, both the existing structures and those under construction. The regulations covered streets, parks, and public areas. Another law dealt with the accessibility in public transportation, while a decree had been adopted that guaranteed access to websites and applications on mobile devices for all public sector applications. The Second National Action Plan on the accessibility, which was still awaiting the approval, contained 84 initiatives, including the provisions for cognitive accessibility. The State participated in the installation of elevators in buildings of three or more storeys and there was a discount card for public transport for persons with disabilities. There were accessibility features in theatres and cinemas and 80 per cent of television programmes had captioning or sign language interpretation.

The procurement policy established measures for the promotion and protection of the rights of persons with disabilities. The companies that employed more than 50 employees were required to hire at least two per cent of persons with disabilities in order to apply for the public works, while the Urban Accommodation Law included reference to reasonable accommodation in its legal concept, which was implemented in all public works.

Questions by the Committee Experts

In the next round of questions, the Experts asked about the steps taken to abolish guardianship and the substituted decision-making procedures and put in place a system to support persons with disabilities in making decisions about their lives, particularly women and girls with disability and persons with intellectual disabilities.

Spain must stop investing in the construction of new institutions and instead direct its resources in community-based accommodation and services, the Experts said and asked about the assurances that the access to independent living was not conditioned on taking of the medication. The delegation was asked if Spain intended to establish an independent human rights-based mechanism to monitor the mental health facilities and services and whether a national preventive mechanism was in place and if it could conduct announced visits to residential institutions.

They asked the delegation about the protection of women and girls with disabilities from sexual abuse, especially those with intellectual disabilities, and the system in place to support their access to justice. How many trained signed language interpreters were currently available in different court procedures and were court documents available in accessible formats such as Braille and easy read? They also asked how the persons held in psychiatric institutions could use the provisions of the Convention to challenge their detention and to describe those proceedings, be they administrative of regal.

Could the delegation explain legislative and policy steps taken to provide persons with disabilities with medical and assistive devices they needed; outline how emergency and rescue measures incorporated all types of disabilities; and explain actions taken to make sure that refugees with disabilities had access to services?

Replies by the Delegation

In response to questions raised on access to justice, the delegation said that the goal of all the measures was to boost the right to defence and the legal guidance for persons with disabilities, including those living in the institutions. As for the training of judges and law enforcement officials, over 35 training activities for more than 660 officials had been implemented. Free legal aid was provided for everyone regardless of their economic resources and the defence was provided by duty lawyers of the highest possible quality. Regular training and awareness raising activities on the provisions of the Convention were being organized from members of the bar association. The right to a fair trial was guaranteed to everyone regardless of disability. The right to interpretation and consultation support was regulated by the law and easy read facilities were provided in courts.

In the Ministry of Interior, an interpretation system was available to enable the persons with hearing and visual impairments to file complaints, either by phone or in person, and the Civil Guard had provided forms for victims in easy read. A guide for police officers on addressing the cases involving persons with intellectual disabilities was available, and an application had been developed to enable persons with visual impairments to communicate with the police. A complaint mechanism to denounce discrimination in the workplace was available, including through a virtual mailbox for anonymous complaints.

Children with disabilities who were victims of violence had their statements taken by the experts; the alleged perpetrator was not in the same room during the interview in order to avoid the danger of re-victimization. There were also mechanisms that protected the image of minors with disabilities in media.

Responding to questions about the participation of persons with disabilities in the preparation of emergency plans, the delegation indicated that Spain had adopted specific measures to ensure that persons with disabilities were informed about emergency-related measures. The most vulnerable communities had been identified and measures had been taken to meet their needs. Persons with disabilities were involved in the development of the civil emergency plan.

Spain was experiencing a serious humanitarian crisis for several years with the arrival of a large number of migrants on its coast who were in a situation of great vulnerability. The Spanish Red Cross cared for 24,000 migrants in 2017. The Commission on Migration had been created by a royal decree in 2018, consisting of representatives of ministries and the European Union, to coordinate migration policies in the country. Everything was being done to ensure that the humanitarian response was as inclusive as possible, including special protection for women and girls against exploitation. Temporary holding centres had been rehabilitated to ensure accessibility.

The access to public health and social services was free for all citizens, the delegation said affirming that the specific benefits for persons with disabilities were not conditional upon taking the medication. Personal assistance was a part of the social service catalogue and one of the benefits financed by the social security system, even though it was not being much used. A special autonomous unit of personal assistance was in operation, with specifically trained personal assistants.

Questions by the Committee Experts

Starting this round of questions, the Experts asked about the measures taken to provide persons with intellectual and psychosocial disabilities with comprehensive health treatment without discrimination and to train the health care personnel on treating persons with disabilities. What was being done to assure the privacy and confidentiality of medical records of persons with intellectual disabilities living in the institutions?

What specific measures were there to ensure the meaningful and active participation of representative organizations of persons with disabilities and ensure a more inclusive social protection policy? Could the delegation provide data on employment and unemployment segregated by disability and inform on measures applied to make the labour market inclusive to all persons with disabilities?

Raising grave concern by the fact that over 60 per cent of children with disabilities were in residential care, the Experts asked Spain how it ensured that children with disabilities were not separated from their families and were able to realize their right to live in a family environment.

The inclusive education required a transformation of the education system and the adoption of a new teaching approach and an inclusive curriculum, availability of teaching and learning aids and inclusive extracurricular activities, as well as an inclusive atmosphere that included all teaching staff and students. What was Spain doing to turn all those into a reality for children with disabilities, including in higher education?

Was the accessibility to voting process assured for persons with disabilities, particularly those with intellectual and psychosocial disabilities, and could persons with disabilities whose legal capacity was restricted or deprived of liberty exercise their voting rights?

The Experts asked the delegation to share its best practice in the realization of human rights of persons with disabilities.

Replies by the Delegation

The delegation said that the additional layer of protection of the confidentiality of data of persons with disabilities was provided by the data protection law and added that the use of health data, particularly of minors and persons with disabilities, was criminalized.

In response to questions on children with disabilities in residential care, a delegate explained that centres were small and accommodated only a few children in order to resemble, as close as possible, the family environment. Spain was aware that family-based care was the most beneficial for all children, including those with disabilities, and it was actively promoting foster families and family placements. The delegate stressed that all care structures were being carefully monitored and inspected to ensure that the best interest of the child was always taken into account. The institutionalization was pursued only when a family-based option was not available.

Inclusive education was a right in Spain, said the delegation, adding that currently, 83 per cent of students with special needs were enrolled in inclusive schools. Although important progress had been made, there was a need to step up the pace and ensure inclusive education for all. To that end, Spain was in the process of adopting of a new law which aimed at the full inclusion of the children with disabilities in the educational system and would provide more flexibility in programmes to accommodate them and to avoid automatic repetition. The number of special teaching assistants would be increased in the next several years and a ten-year plan for inclusive education had been developed.

Not everyone with a mental health problem was considered to be a disabled person, the delegation said and added that psychiatric hospitals had been closed. Today, persons with intellectual disabilities were included in the communities, where a network of community mental health centres had been established in general hospitals, and which included home help services. The teams that worked in mental health centres were multidisciplinary, covering all the issues that might occur.

The unemployment rate of persons with disabilities was around 26 per cent and 17 per cent for the general population. The public employment service’s new data showed that the increase in the employment of persons with disabilities was around 13 per cent. The proportion of indefinite contracts of persons with disabilities was twice as high as the general population. Spain encouraged the employment of women with disabilities and the Public Sector Law established the ways to support persons with disabilities. The new labour law provided new employment opportunities and over 70 per cent of the funds were used to promote the employability of persons with disabilities.

In order to guarantee the realization of the right to vote for persons with disabilities, Spain disseminated, before each electoral process, all information on the voting locations and their accessibility and informed the personnel about the voting procedures for persons with disabilities.

With the active involvement of representative organizations of persons with disabilities, the National Statistics Office collected data on persons with disabilities, including on active population, tax breaks and other discounts, entitlement care, the employment rate and many others.

Concluding Remarks

MARIA LUISA CARCEDO, Minister of Health, Consumption and Social Welfare of Spain, said in her concluding remarks that Spain took good note of the Experts’ and would use them in its efforts to bolster the rights of persons with disabilities. Spain was one of the few countries which had an institution specifically dedicated to persons with disabilities and had taken a series of measures to improve the living conditions of persons with disabilities. The country would continue to break down the barriers to the effective realization of the right for all, putting a focus on persons with disabilities, which for Spain was a question of justice.

RAFAEL MUGURUZA, Defensor del Pueblo of Spain, in his conclusion, thanked the Committee for the invitation and was looking forward to the Committee’s final conclusions and recommendations.

JESUS MARTIN BLANCO, Independent Monitoring Framework of Spain, in concluding remarks expressed hope that the Committee’s recommendations would improve the development of policies and eliminate the discrimination against persons with disabilities in Spain. The Committee was the central reference point and the best ally when it came to social change the persons with disabilities required.

ROSEMARY KAYESS, Committee Co-Rapporteur for Spain, in her concluding observations, said that the Committee was looking forward to Spain using its reform processes to embrace the transformation of the existing laws, policy and practice and also provide leadership for other States parties. The Co-Rapporteur urged Spain to give due attention to the critical areas of non-discrimination and legal capacity, the freedom from all forms of violence and exploitation, the protection from neglect and abuse, and the realization of the rights to live independently and be included in the community, as well as the right to inclusive education.

Danlami Umaru Basharu, Committee Chairperson, in his conclusion, expressed hope that the Committee’s concluding observations would guide Spain in the implementation of the Convention throughout its territory.



For use of the information media; not an official record

CRPD/19/5E