Committee on the Rights of Persons with Disabilities considers initial report of Brazil

Committee on the Rights of Persons
  with Disabilities

26 August 2015

The Committee on the Rights of Persons with Disabilities today concluded its consideration of the initial report of Brazil on its implementation of the Convention on the Rights of Persons with Disabilities.

Regina Dunlop, Permanent Representative of Brazil to the United Nations Office at Geneva, reiterated Brazil’s commitment to adjusting the legal framework and public policies to terms enshrined in the Convention, as reflected by the adoption of the National Plan for the Rights of Persons with Disabilities “Viver sem Limite” – “Living without Limits”, aimed at strengthening the participation of persons with disabilities in society by promoting their autonomy, removing barriers, and providing access on an equal basis to education, health, social inclusion and accessibility. 

Introducing the report of Brazil, Pepe Vargas, Minister-Chief of the Secretariat for Human Rights of the Presidency of the Republic, said that Brazil was devoted to overcoming the assistance approach to persons with disabilities to that of human rights and autonomy and had taken steps to enhance the economic, social and cultural rights of persons with disabilities.  Discrimination against persons with disabilities was now an offence.  Brazil aimed for the inclusive educational system and was making significant steps to overcome the old educational model which segregated students.  The National Plan for the Rights of Persons with Disabilities had established specific targets for accessible schools, accessible technology, accessible school buses, and autonomy and independence in different education cycles. 

In the ensuing discussion, Committee Experts commended Brazil for the many positive steps taken to implement the Convention, such as the National Plan for the Rights of Persons with Disabilities and a number of specific programmes including the Plan Brazil 2022 Centennial Target to ensure the exercise of all rights by persons with disabilities by this date.  However, the medical model still prevailed in the disability law and policy, the educational system was still segregated, and the institutionalization of persons with disabilities remained the primary challenge.  The 2014 Inclusion Law, which was still to enter into force, did not seem to be fully harmonized with the Convention: it still permitted substituted decision-making while supported decision-making was dependent on the judge.  Committee Experts were concerned about the practice of abandoning children with disability, and the lack of support for families with children with disabilities which led to a high rate of institutionalization.  They inquired about specific measures for the deinstitutionalization of persons and children with disability, and the support available for independent and community-based living.

In concluding remarks, Teresa Degener, Committee Expert and Country Rapporteur for Brazil, called upon Brazil to do better and go faster in the implementation of the Convention and take the lead for the southern hemisphere, and recommended that the entry into force of the Inclusion Law be postponed, in order to align it with the provisions of the Convention on the Rights of Persons with Disabilities.

Mr. Vargas in his closing remarks expressed hope that the Committee’s report would recognize the progress Brazil had made and that it would fairly assess what needed to be done to implement the Convention.

The delegation of Brazil included representatives of the Secretariat for Human Rights of the Presidency of the Republic, Ministry of Cities, Ministry of Social Security, Ministry of Social Development, Ministry of Education, Ministry of Health, National Secretariat for the Promotion of the Rights of Persons with Disabilities, City of Sao Paulo, State of Piaui, State of Rio de Janeiro, Federal Parliament, Regional Labour Court at the 9th Region, the National Council of the Right of Persons with Disabilities, and the Permanent Mission of Brazil to the United Nations Office at Geneva.

The Committee will issue its concluding observations and recommendations on the report of Brazil at the end of the session, on Friday, 4 September 2015.  The next public meeting of the Committee will be at 3 p.m. this afternoon, when it will begin its consideration of the initial report of Qatar CRPD/C/QAT/1.

Report

The initial report of Brazil can be accessed here: CRPD/C/BRA/1.

Presentation of the Report

REGINA DUNLOP, Permanent Representative of Brazil to the United Nations Office at Geneva, introducing the delegation, said that in Brazil, the Convention on the Rights of Persons with Disabilities was implemented through a constitutional amendment.  The commitment to adjust the legal framework and public policies to the terms enshrined in the Convention was reflected in numerous pieces of legislation, and the adoption of the National Plan for the Rights of Persons with disabilities “Viver sem Limite” – “Living without Limits”, aimed at strengthening the participation of persons with disabilities in society by promoting their autonomy, removing barriers, and providing access on an equal basis to education, health, social inclusion and accessibility.  Brazil was of the view that the entire United Nations regulatory framework applied to persons with disabilities on an equal basis and the Committee should foster and promote a cross-cutting approach with a view to mainstreaming the rights of persons with disabilities in all United Nations endeavours and the broader global community.   

PEPE VARGAS, Minister-Chief of the Secretariat for Human Rights of the Presidency of the Republic, introducing the report, said that Brazil had a population of more than 200 million, of which 46.6 million had some form of disability.  Brazil had recently developed wealth-distribution policies and had made significant progress in lifting its people out of poverty, from 25 per cent in the early 1990s to four per cent in 2011; more than 50 per cent of the population was part of the middle class.  Social policies with an inclusive character that was focused on full citizenship had been developed, based on the national  human rights framework and Viver sem Limite.  Brazil was devoted to overcoming an assistance approach to persons with disabilities to that of  human rights and autonomy and had taken steps to enhance the economic, social and cultural rights of persons with disabilities.  Discrimination against persons with disabilities was now an offense and persons with disabilities were entitled to receiving an inclusion grant.  Measures had been adopted to ensure accessibility to transportation and communication, while the law guaranteed accessibility for persons with disabilities to education, work, health, transportation, rehabilitation, leisure, and other areas.  The Ministry of Communication had adopted regulations to increase accessibility for persons with disabilities; the implementation would be gradual in line with the switch to digital channels.  Persons with disabilities also enjoyed the right to adequate housing and there were universally designed housing projects and specific kits for persons with disabilities. 

Education was the right of all and Brazil aimed for an inclusive educational system, with special attention to the needs of persons with disabilities.  Brazil was making significant steps to overcome the old educational model which segregated students.  The National Plan for the Rights of Persons with Disabilities had established specific targets for accessible schools, accessible technology, accessible school buses, and autonomy and independence in different education cycles.  Targets had also been established to broaden orthopaedic workshops, broaden rehabilitation centres and improve and enhance early detection.  Brazil recognized the ongoing challenges in the full enjoyment of rights for specific groups of persons with disabilities, namely children, lesbian, gay, bisexual, transgender and intersex persons and indigenous people.  

Questions by the Committee Experts

TERESA DEGENER, Committee Expert and Country Rapporteur for Brazil, said that Brazil was one of the first signatories of the Convention on the Rights of Persons with Disabilities, which it had ratified alongside with its Optional Protocol already in August 2008 without any reservation or declaration.  The Convention was the first  human rights treaty ratified with a constitutional amendment status and many positive steps had been taken to implement it, including the National Plan for the Rights of Persons with Disabilities, and a number of specific programmes such as Living without Limits, My Home My Life Programme, the Athlete Grant, and the Plan Brazil 2022 Centennial Target to ensure the exercise of all rights by persons with disabilities by this date.  Turning to issues of concern, the Country Rapporteur said that the disability law and policy seemed to be stuck with the medical model of disability and the  human rights model had not been adopted so far.  The educational system was still segregated, exclusion took place through institutionalization, and mental health law and guardianship law did not allow for inherent dignity, individual autonomy and the freedom to make one’s own choices.  The harmonization of national laws with the Convention seemed to be a challenge.  While Brazil had adopted the Inclusion Law which favoured supported decision making, the judicial procedure to receive this support was still questionable and the guardianship law provided for interdiction. 

The National Conferences on the Rights with Persons with Disabilities were laudable steps towards ensuring the meaningful participation of persons with disabilities in planning, implementation and monitoring of the Convention, but the Convention required the establishment of an independent monitoring mechanism.  The primary challenge in Brazil was the institutionalization of persons with disabilities.  While some tangible steps had been taken towards deinstitutionalization, there were still many persons detained on the grounds of impairment and many persons with disabilities were forced to live in institutions or with family members because there were no independent living services nor any personal assistant programmes.  The situation in the penitentiary detention was alarming, with 87 per cent of the facilities inaccessible to prisoners with disabilities who were found to be detained under inhuman and degrading conditions.  Urgent measures needed to be taken to address this situation.

Another Expert asked about the change in the use of terminology to ensure it was in line with the Convention and the timeline for the reform of the psychiatric system.  There was lack of attention and exclusion of persons with disabilities from indigenous populations, and the practice of infanticide of babies born with obvious disabilities.  Lack of inclusion of women with disabilities was another area of concern.

A Committee Expert asked how persons with disabilities were empowered to use different remedial avenues to address discrimination on the grounds of disability.  Brazil was one of few countries where accessibility was guaranteed in the Constitution, but the question was its implementation, especially outside of the capital and in remote areas. 

Experts said that law 5296 of 2005, which contained the outdated medical definition, was still in place, and that children with disability still suffered segregation in education, with some even being asked additional fees, and asked about the plans to amend the Constitution to include disability as a ground for discrimination.  The delegation was asked to inform the Committee about the examples of good practice in the preparations for the World Cup 2014 and what needed to be improved in the light of Olympic and Paralympic Games in 2016.  The Committee was very concerned about the practice of abandoning children with disability, and the lack of support for families with disabled children which led to a high rate of institutionalization.  What specific measures were in place for deinstitutionalization of children with disability and the support of community-based living for children with disability throughout the country?

Experts recognized the efforts of Brazil in the fight against discrimination and asked about sanctions for discrimination against persons with disabilities in the country.  What norms had to be overturned to harmonize legislation with the Convention? What reasonable accommodation was in place to ensure that persons with disabilities could vindicate their rights guaranteed by the Constitution?

MARIA SOLEDAD CISTERNAS REYES, Committee Chairperson, stressed that further measures needed to be taken to address the remaining poverty in the country, particularly in the favelas, and asked about the implementation of the Maria da Penha law on domestic violence in relation to women with disabilities.

Response by the Delegation

In response to these questions and comments and others, the delegation said that the public policies in Brazil applied equally to all persons, but it was true that there were groups of vulnerable persons such as indigenous people or Afro-descendants, or those who suffered certain prejudices, who had difficulties in accessing some of their rights.  Currently, 25 million people had exited extreme poverty, but there were others still living in poverty and the State needed to identify and register them so that they could benefit from the clear policy to distribute income.  The Inclusion Law had been adopted recently, after consultations with various groups of the population, including women.  The National Council for Persons with disabilities took an active role in the monitoring of the implementation of the Convention. 

Only four penitentiary facilities were maximum security, and all remaining prisons were managed by a state government.  Brazil was aware that this system was extremely vulnerable and there were failures in respecting  human rights, and that was why the national preventive mechanism for torture and ill treatment had been set up, which could visit all facilities in the country.  The concept of disability adopted in Brazil was in line with the Convention; it was a revolution because terminology used before included words such as cripple, invalid, deficiencies.  Disabled was now used to describe limitations, and was an evolving concept, and was incorporated in the Inclusion Law.  There were quotas for employment of persons with disabilities, with sanctions for companies failing to comply.  The Labour Law had been amended in 1991 to introduce incentives for employment of women.  Discrimination on the grounds of disability was a crime, punished by three years imprisonment; if discrimination was committed against a caregiver, the punishment was increased by a third.

Following the ratification of the Convention, the education law had been revised to ensure the access of persons with disabilities to an inclusive education system.  The specialized education system today was a public system to promote accessibility in the public and private schools, aiming at identifying and eliminating barriers.  Basic and superior education for persons with disabilities was being broadened and Brazil was advancing in ensuring inclusive education, but was still facing challenges of segregation. 

The process of institutionalization of persons with disabilities was being reviewed and a plan had been prepared for the coexistence of persons with disabilities with families, and the establishment of services protecting the families. 

Institutionalization was decreasing due to the implementation of this integrated system for the provision of autonomy for persons with disabilities.  With regards to women with disabilities, the delegation said that Brazil had a Women’s Ministry and several actions to fight violence against women and protect women and their families had been undertaken.  The national policy for women with disabilities was still fragile and not very specific.  Challenges facing women with disabilities had been identified and Brazil was developing National Guidelines to address those barriers in several sectors, including in health.  Brazil recognized that people with mental health problems were protected by the Convention and it also recognized the need for organization and resources to fight for the reform of the psychiatric sector.

Brazil had made advances in accessibility, it had already made the transportation system accessible in the sites of the 2016 Olympic and Paralympic Games, all buses leaving factories were low floor and accessible, and the number of hours of broadcast was increasing.  The Inclusion Law, which regulated the Convention, had been opened for public consultation for six years during it drafting phase, and had been translated into sign language.  The challenge was in the lack of knowledge about the Convention among the judges.  Brazil aimed to have universal design and achieve full accessibility in the public transportation.  Municipalities were in charge of promoting accessibility in sidewalks, public transportation and public facilities, while the Federal Government had in place the National Action Plan for Mobilization to increase accessibility for persons with disabilities.

Questions by the Experts

The Bill 1057 dealt with harmful traditional practices and provided the protection of fundamental rights of indigenous children; what campaigns had been undertaken to change some of the traditional practices and what was the role of popular culture in it? 

Committee Experts expressed concern about the success of deinstitutionalization in the absence of political will, declassification of social assistance services, and the absence of a systematic programme involving non-governmental and community-based organizations.  Was institutionalization without a person’s consent permitted and was it based on a medical diagnosis?  What plans were in place to prohibit forced institutionalization and institutionalization without consent of the person in question?  What measures were envisaged to prevent trafficking of persons with disabilities for purposes of sexual exploitation?

TERESA DEGENER, Committee Expert and the Country Rapporteur for Brazil, asked about the laws regulating the supported decision-making and asked about the process in place to replace substitute decision-making with supported one.  Was forced sterilization ever permitted?

MARIA SOLEDAD CISTERNAS REYES, Committee Chairperson, asked in which cases a person with disabilities was declared incompetent before the courts, and what had Brazil done to address the situations of violence and ill treatment in institutions.

Response by the Delegation

There were 305 indigenous people tribes who spoke 274 languages between them.  The indigenous population numbered 817,000 individuals, of whom 315,000 lived in urban areas; 48 per cent of indigenous peoples lived in the northern region which covered the Amazon region.  It was important to say that 81 per cent of the Brazilian Amazonian forest was preserved and that action taken by the State had led to a sharp decrease in criminal deforestation.  The increase in the number of indigenous populations was also due to the clear demarcation of indigenous territories.  Brazil was committed to fighting infanticide of children born with disability, which was still practiced among 15 of the tribes. 

The Law 12847 of 2013 had created the national system for prevention and combatting torture and cruel and other degrading treatment, and had also established a national preventive mechanism.  In terms of violence against persons with disabilities, the delegation said that the overwhelming majority of the cases reported by the National Supervisor for  Human Rights concerned intra-family violence.  A 24/7 hotline was available for reports of violence for all people in the country; during the 2011-2014 period, 31,340 reports of violence against persons with disabilities had been reported, which included negligence, physical and psychological violence. 

The aim of the Inclusion Law of 2014 was to bring the domestic legislation in line with the Convention on the Rights of Persons with Disabilities, and it had repealed article 3 of the Civil Code, which made certain categories of persons incapable of exercising daily activities or expressing wishes. 

Following the ratification of the Convention, Brazil had adopted the political concept of disability at the highest levels of its legal framework, and so had overcome the medical-based model.  The concept of disability was an open one, it was constantly developing and was being further defined.  This had led to the adoption of the international classification of functionality for establishing public policies with regards to social assistance and special retirement.

In 2012, Brazil had adopted the agenda for the protection of children called Protect Brazil, to ensure the protection of children during large sporting events, and had since extended those protection strategies to other vulnerable groups and children and adolescents.  Professionals in various areas of social policy were being trained in protection strategies for children and adolescents during mega sporting, religious and cultural events.  Applications like Protect Brazil for mobile devices had been developed to enable people to locate the protection bodies and report violations to the national  human rights supervisory body.

Poverty was the main reason of institutionalization of children with disability, and this was being addressed through income transfer and improvement of living standards of families of children with disability.  Inclusive residence was an alternative model to the institutionalization of children and adults: it promoted the development of adaptive capacities for day-to-day living, promoting of autonomy and opportunities through social participation.  Currently, 2.2 million persons with disabilities benefitted from a monthly payment at the level of the basic salary, while increased access to an independent life had been offered through adapted housing and the My House My Life programme.

Indigenous persons with disability could attend inclusive education in their own language.  In 2014, there had been 1,627 indigenous persons with disabilities in schools, and 487 indigenous schools of which 39 received allocation of technology to promote accessibility.

In terms of the assessment of disability, Brazil adopted the principles of the Convention and had changed its medical model to a social one, and this classification had been used since 2007 for decisions regarding the allocation of special and social benefits.  In 2013, special retirement payments and the social security benefits became available to persons with disabilities on the basis of functionality.  All Brazilians had free access to the health system, which was a network of services in basic, hospital and specialized care.  Therapy of persons with disabilities must be based on a diagnosis and following an inter-disciplinary assessment conducted in cooperation with the family.  The health system reported that 4.3 per cent of all types of violence were against women with disabilities, and more than five per cent of complaints of sexual violence were by women with disabilities.  The new National Policy for Mental Health Care had been adopted in 2011, which defined interment as an exceptional measure.  Extensive services were available for deinstitutionalization and psychosocial rehabilitation of long-term residents in mental hospitals.

Questions by the Committee Experts

A Committee Expert commended Brazil for the progress made in eradicating poverty and expressed concern that the majority of persons with disabilities lived in poverty and social exclusion, including indigenous persons with disabilities.

What was the current legal status of Braille and sign language, including in other languages spoken in the country?  Even though Brazil was committed to inclusive education, special education schools continued and Experts wondered whether they had a role in supporting inclusive schools.  What plans were in place concerning the ratification of the Marrakech Convention? How would the Sustainable Development Goals be accessible to and inclusive of persons with disabilities?   The 2014 Inclusion Law, which was still to enter into force, did not seem to be fully harmonized with the Convention: it still permitted substituted decision-making while supported decision-making was dependent on the judge.

A Committee Expert stressed the importance of independent and supported living and the availability of an adequate income for persons with disabilities in order to support their social inclusion and participation.  Experts asked whether the education system aimed to equip persons with disabilities to have a place in the labour market, whether there was inclusive preschool education for children with disability, where children with disability were trained to get professional competencies, and how persons with disabilities in Brazil could be empowered in employment?

TERESA DEGENER, Committee Expert and the Country Rapporteur for Brazil, noted the reports of children being removed from persons with disabilities and asked whether it was legal and what support was available for parents with disability?
 
Response by the Delegation

All political electoral campaigns must be accessible with subtitling with a description and sign language in one corner.  Polling stations must be made physically accessible, and there were electronic polling booths and special boards with Braille.  Following the changes in the law, no one could be denied the right to vote, regardless of the type of disability.  Persons with disabilities who were parties to a court case were supported in expressing their wishes and providing statements; if this was not possible, a tutor was appointed to express the wishes on behalf of the persons with disabilities.

The National Education Council had decided that special schools, previously part of a system which segregated persons with disabilities, would be reformed in order to
ensure the development of an inclusive education system.  Thus special schools would be transformed into specialised care centres which would support the inclusion of students with disabilities in mainstream education through the production of accessible teaching materials, teaching Braille, teaching Brazilian sign language, teaching the use of assistive technologies for education purposes, and developing pedagogical methodologies to foster the full enjoyment of cognitive capacities.
  
One of the mechanisms which fostered social and political participation of persons with disabilities was the Councils for the Rights of Persons with Disabilities, and currently there were more than 6,000 municipalities with their own municipal councils, which ensured that persons with disabilities were directly involved in deliberations.  So far, three National Conferences on the Rights of Persons with disabilities had taken place, in which delegates debated public policies with public authorities and important decisions with regards to the Convention on the Rights of Persons with Disabilities were taken.

My Home My Life programme aimed to provide adequate housing for three million low income families; homes had a universal design and persons with disabilities benefitting from the programme were provided with a kit to ensure accessibility.  Brazil was tackling a challenge to provide personal assistants for independent living for persons with disabilities; the service was in place in some large municipalities, but was not yet universal and able to respond to demand.  The legislation had provided an inclusion bonus to persons with disabilities, a social benefit paid out in addition to disability allowance, that sought to defray the costs of independent living.  The National Plan for the Rights of the Child aimed to provide assistance to persons with disabilities to ensure they could fulfil their parental responsibilities. 

Concluding Remarks

PEPE VARGAS, Minister-Chief of the Secretariat for Human Rights of the Presidency of the Republic, hoped that the Committee’s report would recognize the progress Brazil had made in the implementation of the Convention and that it would fairly assess what needed to be done.

TERESA DEGENER, Committee Expert and the Country Rapporteur for Brazil, recognized the commitment of Brazil to the Convention and the good understanding of accessibility, non-discrimination, and the problems involved with institutionalization.  Challenges remained however, and Brazil needed to do better and go faster in the implementation of the Convention and take the lead for the southern hemisphere.  Brazil should postpone entry into force of the Inclusion Law in order to align it with the provisions of the Convention.

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