E. The communication procedure: from complaint to resolution

The overall procedure is as follows:

The Committee has so far given its views on the merits of three communications: H.M. v. Sweden (communication No. 3/2011), Szilvia Nyusti and Péter Takács v. Hungary (communication No. 1/2010) and Zsolt Bujdosó and five others v. Hungary (communication No. 4/2011).17

H.M. v. Sweden (communication No. 3/2011)

1. Facts

The author, whose impairment has resulted in her being completely bedridden, was not able to leave her house or be transported to hospital or rehabilitation care because of the increased risk of injury. The only type of rehabilitation that could stop the progress of her impairment was hydrotherapy, which in the author's circumstances would only be practicable in an indoor pool in her house. Consequently, the author applied for planning permission for an extension to her house on her privately owned piece of land, partly on land where building is not permitted. The request for building permission was rejected at all levels of the national administrative justice system, because it went against building regulations, and construction could not be permitted even as a minor divergence from the detailed plan and the State party's Planning and Building Act.

2. Claim

The author claimed to be a victim of a violation by Sweden of her rights under articles 1 (purpose), 2 (definitions), 3 (general principles), 4 (general obligations), 5 (equality and non-discrimination), 9 (accessibility), 10 (right to life), 14 (liberty and security of person), 19 (living independently and being included in the community), 20 (personal mobility), 25 (health), 26 (habilitation and rehabilitation) and 28 (adequate standard of living and social protection) of the Convention on the Rights for Persons with Disabilities. The author claimed that she had been discriminated against by the decisions of the State party's administrative bodies and courts, since they had failed to take into account her rights to equal opportunity for rehabilitation and improved health. She thereby claimed to have been refused her right to a worthwhile quality of life. The author requested the Committee to determine whether her needs for rehabilitation and care due to her disability were of primary consideration over the public interest as protected by the Local Housing Committee and as determined in the Planning and Building Act.

3. The State party's submissions on admissibility and on the merits

According to the State party, the author's claims failed to rise to the basic level of substantiation required for purposes of admissibility and should be declared inadmissible pursuant to article 2 (e) of the Optional Protocol. It further stated that the author had merely referred to a number of articles of the Convention without advancing grounds for how her rights under these articles had been violated, and that it was only in a position to explain in general terms how Swedish legislation relates to and fulfils the requirements contained in the articles that may be relevant in this case. The State party viewed that the communication should be declared inadmissible for lack of substantiation, since the author's claims under various articles of the Convention failed to rise to the basic level of substantiation.

4. Decision

The Committee noted that the author had invoked a violation of articles 9, 10, 14 and 20 of the Convention, without however providing further substantiation as to how these provisions may have been violated. Therefore, the Committee considered that these claims were insufficiently substantiated, for purposes of admissibility, and were thus inadmissible under article 2 (e) of the Optional Protocol. The Committee considered that the author's remaining allegations under articles 3, 4, 5, 19, 25, 26 and 28 of the Convention had been sufficiently substantiated, for purposes of admissibility, and proceeded to their examination on the merits. The Committee noted that the information before it showed that the author's health condition was critical and access to a hydrotherapy pool at home was essential and an effective—in this case the only effective— means to meet her health needs. Appropriate modification and adjustments would thus require a departure from the development plan, in order to allow the building of a hydrotherapy pool. With reference to the Convention's definitions of “discrimination on the basis of disability” and “reasonable accommodation” (art. 2), the Committee noted that the State party had not indicated that this departure would impose a “disproportionate or undue burden”, which was a prerequisite for defining that a request for accommodation was unreasonable. In relation to articles 25 (health) and 26 (habilitation and rehabilitation), the Committee noted that, when rejecting the author's application for a building permit, the State party had not addressed the specific circumstances of her case and her particular disability-related needs. The Committee therefore considered that the decisions of the domestic authorities to refuse a departure from the development plan in order to allow the building of the hydrotherapy pool were disproportionate and produced a discriminatory effect that adversely affected the author's access, as a person with a disability, to the health care and rehabilitation required for her specific health condition.

5. Finding

The Committee found that the State party had failed to fulfil its obligations under articles 5 (1), 5 (3), 19 (b), 25 and 26, read alone and in conjunction with articles 3 (b), (d) and (e), and 4 (1) (d), of the Convention. Having reached this conclusion, the Committee did not consider it necessary to address the author's claims under article 28 of the Convention.

Szilvia Nyusti and Péter Takács v. Hungary (communication No. 1/2010)

1. Facts

Both authors are persons with visual impairments who had contracts for private current account services with the OTP Bank Zrt. credit institution (OTP), according to which they are entitled to use banking cards. Nevertheless, the authors were unable to use automatic teller machines (ATMs) without assistance, as the keyboards of the ATMs operated by OTP were not marked with Braille fonts, and the ATMs did not provide audible instructions and voice assistance for banking card operations. The authors paid the same annual fees for banking card services and transactions as other clients, although they were unable to use the services provided by these ATMs to the same level as sighted clients. They therefore received lesser services for the same fees. The authors submitted a claim to a court of first instance, which held that the bank's behaviour resulted in direct discrimination and that, as a consequence, OTP had violated the authors' right to human dignity and to equal treatment. The court further specified two elements that had been under discussion: first, that the Equal Treatment Act was applicable to all civil relations, irrespective of whether the parties thereto were public or civil sector operators, where services were provided to numerous clients; and second, that even contract offers made prior to the entry into force of the Equal Treatment Act would be covered by its provisions, since the aim of the Act was to make the principle of non-discrimination applicable to any relationship where a larger number of clients could be involved. The court ordered that some ATMs needed to be retrofitted. It also granted pecuniary damages which took into consideration that OTP had recently purchased new ATMs that could not be retrofitted and had not taken any measures to facilitate the authors' access to the services provided by ATMs, even after the entry into force of the Equal Treatment Act.

The authors appealed against the first instance decision, requesting that all ATMs be made accessible, asserting that their activities should not be limited only to those cities where ATMs were to be made accessible further to the decision of the court of first instance. They also demanded more compensation. The Court of Appeal rejected the appeal, reaffirming the findings of the court of first instance. Consequently, the authors submitted a request for an extraordinary judicial review at the Supreme Court, in which they asked the Court to alter the decision of the Metropolitan Court of Appeal. The Supreme Court rejected the request.

2. Claim

The authors claimed to be victims of a violation by the State party of their rights under article 5, paragraphs 2 and 3, article 9 and article 12, paragraph 5, of the Convention. The authors submitted that, by not intervening in a long-term contractual relationship between them and OTP on their request in order to impose on OTP an obligation of equal treatment, the Court of Appeal and the Supreme Court had violated the State party's obligations under article 5, paragraph 2, of the Convention to prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

3. The State party's submissions on admissibility and on the merits

The State party informed the Committee that it would not challenge the admissibility of the communication. On the merits of the communication, the State party submitted that, based on the regulations in force in the State party, the judgement of the Supreme Court was sound. It added that the problem outlined in the communication was real and required a fair settlement, and put forward three aspects in order to find a solution acceptable to all parties. Firstly, steps were to be taken to improve the accessibility of ATMs and other banking services, not only for persons who are blind but also for persons with other impairments. Secondly, given the related costs and technical viability, the above target could be achieved only gradually, by procuring and installing new ATMs facilitating physical and info-communication accessibility as a basic condition. Finally, although the communication concerned the services provided by a specific bank, the above-mentioned requirements would have to be met by all financial institutions in the State party. Based on these considerations, the State Secretary for Social, Family and Youth Affairs of the Ministry of National Resources sent a letter to OTP, asking it to provide information on its plans and commitments related to its ATMs. The State Secretary further suggested that, in the future, OTP should give priority to accessibility when new ATMs are procured. Taking into account that ensuring accessibility should not be the duty of one bank alone, the State Secretary had also contacted the State party's Financial Supervisory Authority with a request to identify possible regulatory tools and incentives for all financial institutions.

4. Decision

The Committee noted that the authors had invoked a violation of article 12, paragraph 5, of the Convention, without however providing further substantiation as to how this provision may have been violated, given that, according to the information before the Committee, their legal capacity to control their own financial affairs had not been restricted. Therefore, the Committee considered that this part of the communication was insufficiently substantiated, for purposes of admissibility, and was thus inadmissible under article 2, paragraph (e), of the Optional Protocol. The Committee considered that the authors had sufficiently substantiated, for purposes of admissibility, their claims under article 5, paragraphs 2 and 3, and article 9 of the Convention. In the absence of other impediments to the admissibility of the communication, the Committee declared these claims admissible and proceeded to their examination on the merits.

On the merits, the Committee noted that the authors' initial complaint to the first instance focused on the lack of reasonable accommodation, i.e., the failure by OTP to provide for accessible ATMs in the proximity of the authors' homes, considering their visual impairments. The Committee further noted that the authors' civil action before the Court of Appeal and the Supreme Court, as well as their communication before the Committee went further and raised a broader claim, i.e., the lack of accessibility for persons with visual impairments to the entire network of ATMs operated by OTP. Given that the authors had opted to frame their communication before the Committee under this broader claim, the Committee considered that the totality of the authors' claims should be examined under article 9 of the Convention and that it was unnecessary for it to separately assess whether the State party's obligations under article 5, paragraphs 2 and 3, of the Convention had been fulfilled.

In this regard, the Committee recalled that under article 4, paragraph 1 (e), of the Convention, States parties undertake “to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise”. To this end, States parties are required pursuant to article 9 of the Convention to take appropriate measures to ensure to persons with disabilities, on an equal basis with others, access to, inter alia, information, communications and other services, including electronic services, by identifying and eliminating obstacles and barriers to accessibility. States parties should, in particular, take appropriate measures to develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public (art. 9, para. 2 (a), of the Convention), and ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities (art. 9, para. 2 (b)).

5. Finding

While giving due regard to the measures taken by the State party to improve the accessibility of the ATMs operated by OTP and other financial institutions for persons with visual and other types of impairments, the Committee observed that none of these measures had ensured the accessibility to the banking card services provided by the ATMs operated by OTP for the authors or other persons in a similar situation. The Committee found accordingly that the State party had failed to comply with its obligations under article 9, paragraph 2 (b), of the Convention.

Zsolt Bujdosó and five others v. Hungary (communication No. 4/2011)

1. Facts

The authors' names were erased from the electoral register as an automatic consequence of their being placed under partial or general guardianship on the basis of their intellectual impairments. For this reason they could not participate in parliamentary and municipal elections in 2010, and they remained disenfranchised at the time of submitting the complaint. The authors alleged that no effective remedy was at their disposal. The courts did not have the power to consider and restore their right to vote. The authors could only have submitted a claim to have their legal capacity restored, but this was neither possible nor desirable for the authors, who acknowledged that they required support in managing their affairs in certain areas of their lives. They could not file a complaint based on the electoral procedures either, because the State's courts could not overrule their exclusion from the electoral register, which was pursuant to a constitutional provision.

2. Claim

The authors claimed that Hungary violated their right under the Convention's article 29 (participation in political and public life), read alone and in conjunction with article 12 (equal recognition before the law). They argued that they were able to understand politics and participate in elections if they were allowed to, and maintained that the ban they received was unjustified. They requested the State party to introduce the necessary changes to the domestic legal framework and to award them compensation for non-pecuniary damages on an equitable basis.

3. State party's submissions

The State party did not challenge the admissibility of the communication. In its observations on the merits, it reported that the relevant legislation had changed since the authors submitted the complaint. In particular, the constitutional provision that automatically excluded from suffrage all persons under guardianship was abandoned. The new legislation made it possible to address the issue of suffrage separately from that of placement under guardianship and required judges to make decisions in consideration of an individual's circumstances and subject to review. With the new provisions, a person under guardianship could also reclaim suffrage without challenging guardianship. The State party concluded that by introducing these amendments it had brought its laws in line with article 29 of the Convention and demanded that the Committee should dismiss the authors' request for legal amendment and non-pecuniary compensation.

4. Third-party intervention

The Harvard Law School Project on Disability submitted a third-party intervention in support of the authors' communication. It submitted that, further to the claims of the authors, subjecting persons with disabilities to individualized assessments of their voting capacity was in itself a violation of article 29 and that the right to vote should never be subject to a proportionality assessment and justification.

5. Decision

The Committee considered the communication admissible since the State party made no objection in connection with the exhaustion of domestic remedies nor had it identified any remedy which would have been available to the authors, and the authors had sufficiently substantiated their claims under articles 29 and 12 of the Convention.

The Committee observed that the State party had merely described the new legislation without showing how this regime specifically affected the authors and the extent to which it respected their rights under article 29. The Committee also found that the State party had failed to respond to the authors' contention that they were prevented from voting and remained disenfranchised despite the new legislative changes. The Committee also clarified that article 29 did not foresee any reasonable restriction nor did it allow any exception for any group of persons with disabilities and therefore even a restriction pursuant to an individualized assessment constituted discrimination on the basis of disability. The Committee found the assessment of individuals' capacity to be discriminatory in nature (as it targeted only persons with disabilities) and considered this measure neither legitimate nor proportional. In this regard, the Committee recalled that under article 29 the State party was required to reform its voting procedures to ensure that persons with intellectual disability were able to cast a competent vote on an equal basis with others. Finally, the Committee recalled that, under article 12, State parties had a positive duty to take the necessary measures to guarantee persons with disabilities the actual exercise of their legal capacity.

6. Finding

The Committee found that the deletion of the authors' names from the electoral registers as well as the State party's failure to adapt its voting procedures breached article 29, read alone and in conjunction with article 12. It also concluded that the new legislation, insofar as it allowed courts to deprive persons with intellectual disability of their right to vote and to be elected, was in breach of article 29. The Committee therefore recommended that the State party should provide the authors with adequate compensation for moral damages incurred as a result of being deprived for their right to vote and should take measures, including appropriate legislative changes, to prevent similar violations in the future.

Before the entry into force of the Convention and its Optional Protocol, communications related to the rights of persons with disabilities had been considered by regional human rights mechanisms as well as by other United Nations human rights treaty bodies, such as the Human Rights Committee. Here are two examples: one from the Council of Europe's Committee of Social Rights and another from the Human Rights Committee:

European Committee of Social Rights Autism Europe v. France complaint No. 13/2002

1. Facts

According to State legislation, people with autism were able to attend mainstream schools, either individually (individual mainstreaming) in ordinary classes with the assistance of special auxiliary staff, or as part of a group (collective mainstreaming) through school integration classes (primary level) or educational integration units (secondary level). People who, due to the severity of their autism, were unable to integrate into the ordinary school system, were able to receive special education in a specialized institution. Individual mainstreaming was financed through the general education budget, while collective mainstreaming was financed through the sickness-insurance benefit. Autism-Europe argued that the State did not, in practice, make sufficient provision for the education of children and adults with autism due to identifiable shortfalls—both quantitative and qualitative—in the provision of both mainstream education as well as so-called special education.

2. Claim

Autism-Europe claimed that the failure to take the necessary steps to ensure the right to education of children and adults with autism resulted in violations of the right of persons with disabilities to independence, social integration and participation in the life of the community, the right of children and young persons to social, legal and economic protection and the prohibition on discrimination.

3. Decision

The Committee recalled that the implementation of the European Social Charter required State parties to take not merely legal action but also practical action to give full effect to the rights recognized in the Charter. When the achievement of one of the rights in question was exceptionally complex and particularly expensive to resolve, a State party had to take measures that allowed it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources. In doing so, States should be mindful of the impact that choices of measures might have on groups with heightened vulnerabilities as well as for others affected, especially the families of vulnerable people. In the light of the facts of the case, the Committee noted that the State continued to use a more restrictive definition of autism than that adopted by the World Health Organization and that there were still insufficient official statistics that would rationally measure progress through time. Further, the proportion of children with autism being educated in either general or specialist schools was much lower than that of other children—whether disabled or not—and there was a chronic shortage of care and support facilities for autistic adults. For these reasons, the State had failed to achieve sufficient progress in advancing the provision of education for people with autism. The Committee also noted that establishments specializing in the education and care of disabled children, particularly those with autism, were not in general financed from the same budget as normal schools; however, this did not amount to discrimination as it was for the States themselves to decide the modalities of funding.

4. Finding

The Committee stated that the State did not conform with the Charter.

Human Rights Committee M.G. v. Germany, communication No. 1482/2006

1. Facts

Three members of the author's family filed lawsuits against the author in family law and civil matters. The author made frequent and voluminous submissions in court proceeding and appealed every single decision that she considered disadvantageous. The members of her family sought an order compelling her to desist from making certain statements and seeking pecuniary damages. The court, without hearing or seeing the author in person, ordered a medical examination of the author to assess whether she was capable of taking part in the legal proceedings. The court reasoned that the behaviour of the author in the proceedings, including her many very voluminous submissions to the court, raised doubts as to her capacity to take part in proceedings. The author challenged the court's decision requiring a medical examination, claiming that there were no objective reasons for ordering the examination and challenging the absence of an oral hearing prior to issuing the order. Having lost that challenge, she took her challenge to two higher courts, including the Federal Constitutional Court, both of which rejected it.

2. Claim

The author claimed to be victim of violations of articles 7 (freedom from torture or cruel, inhuman or degrading treatment), 17 (right to privacy) and 14 (1) (right to a fair trial) of the International Covenant on Civil and Political Rights. In relation to article 7, she argued that requiring the medical treatment was “degrading” as it would cause feelings of fear or anguish and inferiority capable of debasing the victim. In relation to article 17, she argued that involuntary medical examination would interfere with her privacy and integrity, arguing that only in exceptional circumstances and for compelling reasons may a person be subjected to medical or psychiatric examinations without explicit consent. Finally, in relation to article 14 (1), she argued that the refusal of the court to hear or see her in person prior to ordering her medical examination violated her right to a fair trial as an oral hearing is an essential element of the due process guarantees.

3. The State party's submissions on admissibility and on the merits

The State challenged the admissibility of the communication, arguing that it constituted an abuse of the right of submission on various grounds, including the fact that she did not disclose that the order of the court to determine her capacity concerned only proceedings against members of her family and not her legal capacity in other respects. In relation to the merits of the case, the State considered the claim to be “manifestly ill-founded”. The State argued that the author was not compelled to undergo the examination as she could refuse to see the expert, in which case the opinion would be prepared on the basis of the files. Moreover, the State said that the author would have had the occasion to be heard by the court when the court came around to evaluating the expert opinion; however, that stage had not been reached in the proceedings.

4. Decision

The Committee considered admissibility and the merits together. On admissibility, the Committee found that the author had failed to substantiate that the invitation to undergo an expert examination by itself failed to raise issues related to article 7 so this part of the submission was inadmissible. Similarly, the Committee found that the author had not sufficiently substantiated the claim in relation to article 14 (1). In relation to article 17, the Committee found that the author had substantiated these claims for purposes of admissibility and the State had not challenged this.

5. Finding

The Committee found that to order a person to undergo medical treatment or examination without the consent or against the will of that person constitutes interference with privacy, and may amount to an unlawful attack on his or her honour and reputation. For such an interference to be permissible, it must meet certain conditions, i.e., it must be provided for by law, be in accordance with the provisions, aims and objectives of the Covenant and be reasonable under the circumstances. The Committee found the court's actions not to be reasonable, as the author would either have to undergo the examination or, alternatively, the expert would prepare the opinion on the basis of the file without the author being heard. It found a violation of article 17 in conjunction with article 14 (1). The Committee noted the State was under an obligation to provide the author with an effective remedy and to prevent similar violations in the future. The Committee requested information about measures taken to follow up on its views within 180 days. The Committee also requested the State to publish the Committee's views.

It is interesting to review these two cases, which precede the Convention, in the light of the Convention's norms and standards. In particular, the second case raises particularly complicated issues. Importantly, the court's actions, calling into question the legal capacity of the author, would be questionable under the Convention for failing to respect legal capacity on an equal basis with others (using mental disability as a possible distinction for denying her legal capacity in relation to the case). How would this case have been decided by the Committee on the Rights of Persons with Disabilities under the Optional Protocol to the Convention?