The European Convention on Human Rights and The Protection of Persons with Disabilities

Introduction

This section will address the national, European and international frameworks that govern the rights of persons with disabilities. Part I will examine the European Court of Human Rights (ECHR) and its protection of persons with disabilities. Part II will outline the protections guaranteed under the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Part III will provide a critical commentary on the evolution of Ireland's national legal and policy framework in response to the CRPD.

I. The European Convention on Human Rights and The Protection of Persons with Disabilities

The Council of Europe has never provided any specific instrument relating to the protection of the rights of persons with disabilities. Instead, it relies on a combination of policy initiatives, such as the Strategy on the Rights of Persons with Disabilities 2017–2023,

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and the existing rights framework conceptualized through the Convention. The sole explicit reference to persons with disabilities is found in a brief reference in Article 5 of the Convention. This article places a ban on the deprivation of a person's liberties, with one exception proving for the ‘lawful detention of persons of unsound mind’.

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The relatively sparse language in regards to persons with disabilities can be largely attributed to the ECHR’s historical context, at the time of its foundation in the 1950s deficient understandings of disability tended to prevail, and ‘disabled persons were not considered autonomous rights holders at all’ not being conducive to widespread legal recognition.

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However, the ECHR has been willing to extrapolate new principles through its case-law and draw on sources, such as the CRPD, to interpret the European Convention on Human Rights (“The Convention”) in a manner consistent with more robust protection for persons with disabilities.

The primary protection for persons with disabilities can be found under Article 14 of the Convention. Article 14 prohibits “discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a

88 Council of Europe, (2017) ‘Strategy on the Rights of Persons with Disabilities 2017–2023’. 89 Article 5, European Convention on Human Rights. 90 Silvia Favalli, ‘The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: ‘from Zero to Hero’ (2018) 18 (3) Human Rights Law Review 517.

national minority, property, birth or other status”.

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The article itself does not directly refer to persons with disabilities. However, a number of cases have confirmed that its protections extend to those with disabilities.

92 For example, in Cam v Turkey,

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a school was held to be in breach of Article 14 after refusing to admit a blind woman, despite the applicant having successfully passed the relevant examinations. The failure to consider reasonable accommodations for the women's disability placed the school in violation of Article 14.

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Thus the prohibition against discrimination under the Convention can be valuable to the litigation strategies of persons with disabilities.

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More broadly, a number of other provisions within the Convention have been utilized to protect people with disabilities. This includes the right to life under Article 2,

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torture and inhumane treatment in Article 3.97

Of particular interest is the approach of the ECtHR to the right to education under Article 2 of Protocol No. 1. The Court has previously found that States ought to provide more resources for the specialised education of persons with disabilities.

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Similarly the Court has generally favoured cases that argue in favour of specialised education for persons with disabilities, as opposed to an inclusive education within the mainstream school system. In Dupin v France for example, the Court rejected the claim that a refusal to admit a boy with disabilities into a mainstream school was a violation of the Protocol.

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This was partially on the grounds that the child was receiving specialised education which, on balance, seemed appropriate in light of the boy's disabilities.

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Thus, there is a broad array of articles from which the Court has identified protections for persons with disabilities, though these remain constrained within the traditional boundaries of judicial interpretation.

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91 Article 14, European Convention on Human Rights. 92 Rory O’Connell, ‘Cinderella Comes to the Ball: Article 14 and the Right to Non-discrimination in the ECHR’ (2009) 29 Legal Studies: The Journal of the Society of Legal Scholars 211. 93 Application No 51500/08, Merits and Just Satisfaction 23 February 2016. 94 Application No 51500/08, Merits and Just Satisfaction 23 February 2016. 95 Janneke Gerards, ‘The Discrimination Grounds of Article 14 of the European Convention on Human Rights’ (2013) 13 Human Rights Law Review 99. 96 Jasinskis v. Latvia (2010) 45744/08. 97 Vincent v France (2006) 6253/03. 98 Silvia Favalli, ‘The United Nations Convention on the Rights of Persons with Disabilities in the Case Law of the European Court of Human Rights and in the Council of Europe Disability Strategy 2017–2023: ‘from Zero to Hero’ (2018) 18 (3) Human Rights Law Review 51;. Gherghina v. Romania (2015) 42219/07; Sanlısoy v. Turkey (2016) 77023/12. 99 (2019) 2282/17. 100 Dupin v France (2019) 2282/17. 101 Shai Dothan, ‘Judicial Deference Allows European Consensus to Emerge ‘ (2018) 18(2) Chicago Journal of International Law 393.

The ECHR has proven disappointing when it comes to the protections of persons with cognitive disabilities, particularly within the context of voting rights. In Alajos Kiss v. Hungary a Convention violation was identified where a person under a partial guardianship was denied the right to vote.

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However, a number of other cases have refused to recognise a violation where persons with intellectual disabilities are disenfranchised, Most recently, the case of Caamaño Valle v. Spain,103 found that there had been no violation of the prohibition against discrimination or the specialised jurisprudence concerning Article 3 or Protocol No. 1, where the applicant's daughter had been denied the right to vote. The Court regarded that “ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs” as a legitimate aim in the context of restricting voting rights, and chose to defer to Member States within this area. On balance, the Court has been highly restrained within this area, neglecting to adopt a more proactive position such as that within the CRPD.

One particular area of controversy has been the approach that the ECHR should take to persons with disabilities who may seek to terminate their lives. This issue arose in the case of Pretty v UK.

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Here, the Court was asked to assess whether it was a violation of the right to privacy, under Article 8, for the UK to have refused to commit to no prosecution of anyone who assisted a terminally ill woman with terminating her life. The Court noted that Article 8 did not exclude the applicant from the right to end her life.

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However, in this case no such violation had occurred, on the basis that the Member State was best placed to assess the vulnerability of the individual and in turn was entitled to a general prohibition on assisted suicide for fear of abuse of an alternate system.

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Thus, while sympathetic the Court was reluctant to encroach on the State’s assessment of best practice when it comes to assisted suicide.

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Thus, the ECHR offers a relatively weak framework through which persons with disabilities rights are protected. While cases of direct discrimination are often successful, the piece-meal

102 Johan Lievens, ‘DUPIN V. FRANCE: THE ECTHR GOING OLD SCHOOL IN ITS APPRAISAL OF INCLUSIVE EDUCATION?’ (2019, The Strasbourg Observer) <https://strasbourgobservers.com/2019/02/11/dupin-v-france-the-ecthr-going-old-school-in-its-appraisal-ofinclusive-education/> accessed 30/10/2021. 103 (2021) 43564/17. 104 Pretty v UK (2021) 43564/17. 105 (2002) 2346/02. 106 M.A. Sanderson, ‘Pretty v. United Kingdom’ (2017) 96(4) American Journal of International Law 943. 107 Arend Cornelis Hendriks, ‘End-of-life decisions. Recent jurisprudence of the European Court of Human Rights’ (2018) ERA Forum.