hercegprímás utca 11, h1051 budapest, hungary• tel: +36 1 413 2730 • fax: +36 1 413 2739 • email: mdac@mdac.info• email: mdac@mdac.infothe mental disability advocacy center is an international human rights organisation which advances the rights of children andadults with intellectua written comments tothe united nations committee on economic, social and cultural rights _______________________________________ submitted by the overview this written submission provides an outline of issues of concern with regard to slovakia’s compliance with the provisions of the international covenant on economic, social and cultural rights (hereinafter “the covenant”), with particular focus on the enjoyment of those rights by persons with disabilities. the purpose of the submission is to assist the committee on economic, social and cultural rights (hereinafter “the committee”) with its consideration of slovakia’s second periodic report (hereinafter “slovakia’s report”) in this initial stage of the compilation of the list of issues by the country report task force.mdac is an international human rights organization whichadvances the human rights of children and adults with intellectual and psychosocial disabilities. mdac uses law to promote equality and social inclusion through strategic litigation, advocacy, capacitybuilding and research.mdac has participatory status with the council of europe.many of the covenant’s core provisions are articulated and given a disability specificity in the un convention on the rights of persons with disabilities (hereinafter “crpd”). slovakia ratified the crpd on 26 may 201we therefore crossrefer to the crpd where this is helpful. our intention and hope is that the members of the committee examine slovakia’s report in a manner which is consistent with and supportive of other treaty bodies where their mandates overlap. to this end, we encourage the committee to enhance its focus on the rights of persons with disabilities, including individuals with intellectual disabilities and individuals with psychosocial disabilities, byraising the reporting requirements of all states in this respect, and by highlighting them in the list of issues of all states. ii. specific comments a. non-discrimination in economic, social and cultural rights (article 2 icescr) principles of nonscrimination and equality are essential to the exercise and enjoyment of economic, social and cultural rights by persons with disabilities. the prohibition odiscrimination is an immediate and crosscutting obligation enshrined in the covenant and it mustbe applied in connection with all substantive rights guaranteed by the covenant. in general comment no. 5 the committee defined discrimination against persons with disabilities as “any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights”. it further reiterated, in general comment no. 20, that the denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the ground of disability. this obligation is also incorporated in article 2 crpd, which was ratified by the slovak republic in 2010. the crpd connects the principleof reasonable accommodation with all human rights and fundamental freedoms. even though the slovak antidiscrimination act of 2004 recognises (in its article 7) the principle of reasonable accommodation, it does so in a very limited way. the definition of reasonable accommodation covers only the availability and accessibility of employmentfor persons with disabilities. this limited approach is not in conformity with existing international standards and prevents persons with disabilities from full enjoymentof their rights on an equal basis with others. in order to combat substantive discrimination and with view toward establishing full equality, state parties may, and in some circumstances even must, adopt special measuresthis fact was also reiterated by the committee in general comment no. 20. even though article 8a of the slovak antidiscrimination act permits (as from 1april 2008) adoption of temporary special measures, the relevant legal construction is very narrow. such temporary special measures may only be aimed at “removing forms of social and economic disadvantage and disadvantage following from the grounds of age and disability”, they can only be adopted by specified tate organs and only in the areas covered by the antidiscrimination act. by failing to broaden the scope of permitted positive measures, slovakia has not met its obligation to combat substantive discrimination, as set out in the covenant and other international instruments (for example iccpr, cedawcerdor crpd). additionally,the committee affirmed that positive measures may sometimes need to be of a permanent nature (such as reasonable accommodation for persons with sensory impairments in accessing health care facilities). the antidiscrimination act, however, does not includepossibility to adopt special measureof permanent nature. additionally, even though the relevant state organs are obliged to report to the slovak national centre for human rights (body monitoring implementation of the antidiscrimination act) and inform it about measures that would be adopted pursuant to article 8a, no such information has been made available. it is thus very likely that this provision has not been given effect4. in view of the above legal constructions of “reasonable accommodation” and “temporary special measures” it can be established that slovakia has failed to adopt real and concrete measures to combat and eliminate discrimination against minority groups, contrary to the committee’s concluding recommendations following slovakia’s initial report of 2001 suggested questions for the slovak government: what legislative reform is planned in order to ensure that a full and legally enforceable provision for reasonable accommodation is embedded in slovak legislation? what real and concrete measures does slovakia plan to adopt to combat and eliminate discrimination against persons with disabilities? b. right to health (article 12 icescr) article 12 provides the right to the highest attainable standard of physical and mental health. ight to health under article 12 icescr was explained by mr. paul hunt, former special apporteur on the right to health in his report for the un commission on human rightsas having a bearing on institutionalization of persons with mental disabilitiesand guardianship and informed consent requirements. deinstitutionalisation of residential social care services the obligation to ensure the right of access to health facilities, goods and services on a nondiscriminatory basis is one of the core obligations arising from rticle 12 (right to health). in general comments nos. 5 and 14 the committee stressed the need to ensure that not only the public health sector but also private providers of health services and facilities comply with the principle of ndiscrimination in relation to persons with disabilities.mr. paul hunt, special rapporteur on the right to health emphasized that all persons with mental disabilities have the right to community integrationisolation and segregationof persons withmental disabilities, including through unnecessary institutionalization, are inherently discriminatory and contrary to the right tocommunity integration enshrined in international standards. segregation and isolation in themselves can also entrench stigma surrounding mental disability.further, in his report mr. hunt emphasised that: debrecéniová, j.: report on measures to combat discrimination, directives 2000/43/ec and 2000/78/ec, country report 2009, slovak republichunt, p. report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, 2005, e/cn.4/2005/51.ibid., para. 54. 5 …the segregation and isolation of persons with mental disabilities from society is inconsistent with the right to health, as well as the derivative right to community integration, unless justified by objective and reasonable considerations, grounded in law and subject to independent scrutiny and determination.large isolated and segregated residential institutions providing social care are widespread in slovakia. communitservices are unavailable to the vast majority of people who would need such services. even though the committee requested slovakia to provide, in its second periodic report, information about mentally disabled persons, including the number of those hospitalized, the facilities available to themand the legal safeguards for the protection against abuse and neglect of patients, the government failed to do so. the report submitted by the government contains no such statisticdata. mdac provides the committee with relevant data in 3 and graph 12. as seen in tab 1 and tab 2, in 2008 there were 12,813 adults and 2312 children with mental disabilities living in social careinstitutions. further, as seen in graph 1 and graph 2the number of institutionalized adults increased since 2005;the number of institutionalized children declined in 2006, but increased in 2008. therehas been only a slight rise in the number of shelteredhouse services, from 11 in 2005 to 18 in 2009. on the other hand, the number of social careinstitutions almost doubled, from 142 in 2005 to 265 in 2009, as can be seen in tab table no. 1: number of adult residents in social care institutions in 2005 institutions/year social care institutions for adults with physical disability 515 social care institutions for adults with combined disability 5 , , , social care institutions for adults with psychosocial and intellectual disabilities and behaviour problems , , , , total 10, , , , ibid., para. 86.reports on social situation. reports are available: http://www.employment.gov.sk/index.php?smc=1&id=247 table no. 2: number of children in social care institutions in 2005 institutions/year social care institutions for children with physical disability social care institutions for children with physical disability, psychosocial and intellectual disabilitiesand behavioural problems 1 1 1 1 socialcare institutions for children with psychosocial and intellectual disabilities and behavioural problems total , , , , graph no. 1: curve of institutionalisation of adults in social care institutions reports on socialsituation. reports are available: http://www.employment.gov.sk/index.php?smc=1&id=247 reports on social situation. reports are available: http://www.employment.gov.sk/index.php?smc=1&id=247 graph no. 2: curve of institutionalisation of children in social care institutionstable no.3: number of social care facilities type of social care facility/year shelteredhouse facilities11 11 homes for seniors10 caregiver facilities rehabilitation facilities 15 social care homes specialised facilities daily care facilities in 2003, the government approved a request a loan from the council of europe development bank for financing infrastructure of social care institutions. the ministry of labour, social affairs and family chose 25 facilities for this project, which received 500,332,400 slovak crowns (approximately 16,139,754 euros).in 2004, the government reports on social situation. reports are available: http://www.employment.gov.sk/index.php?smc=1&id=247 for graphs in colours, see the online version of this document. tatistics of the statistical office of the slovak republic.the table makes a distinction between “retirement homes” (before 2009) and “homes for seniors” (2009). the difference is rather formal, the target group is the same. comprehensive concluding report on the project “tranformation of existing facilities of social care services” (2008), the ministry of labour, social affairs and family, p. 14 lowered the number of facilities toin march 2008, the ministry of labour, social affairs and family issued the comprehensive concluding report on the project transformation of existing facilities of social care service. according to the report, most of the partial projects were aimed at reconstruction and humanisation of existing services. the establishment of independent or sheltered houses was an objective in projects, of which were built on the premises of the existing institutional social care facility.thus, only 2 projects out of 23 resulted in establishment of new independent shelteredhousing facilities.on 6 october 2004, the government adopted a national programme for mental healthand conception of a transformation of psychiatric care based on the world health organisation documents on mental health.the timeframe for the realisation of the plan was set in plan of actions for 2, 5 and 10 years. the aim of the document is to eliminate stigmatisation of people with mental disabilities and discrimination. however, the slovak government failed to take any concrete and targeted steps towards promoting community services and transformation oflarge residential institutions. in 2009, the ministry of labour, social affairs and family introduced the national priorities for the social services development for the period 2009. the document sets forth four main priorities for improvement in providing of social services. apart from support for community basedservices, the improvement of quality and humanisation of existing social care services is also one of the priorities. no coherent and comprehensive action plan or policy on deinstitutionalisation of social care institutions was adopted in slovakia and current policies are aimed at humanisation of residential social care instead of promoting community based services. continuing the state policy of “institutionalisation” is not justified objective and reasonable grounds and hence it constitutes discrimination on grounds of disability. informed consent and institutionalisation of persons under guardianshipthe then special rappourter on the right to health,paul huntemphasised that guardianship has been overused and abused in the medical as wellas othercontexts, including at the most extreme level to place persons with intellectual disabilities in psychiatric institutions.this is inappropriate medically and socially, andinconsistent with the rights of persons with intellectual disabilities to health, autonomy, participation, nondiscrimination and social inclusion, as defined by article 19 of the crpd (for example, paragraph 1 of that provision states that persons with disabilities have the opportunity to choose their place of residence d where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement comprehensive concluding report on the project “tranformation of existing facilities of social care services”(2008), the ministry of labour, social affairs and family, p. 14.center for social help humanity and social care home košice.an additional report to the national program for mental health, p. 2.hunt, p. report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, 2005, e/cn.4/2005/51, para. 79. persons with intellectual and psychosocial disabilities have faced systematic discrimination for decades in slovakia. one of the main consequences of this longstanding practise is the deprivation of a person’s legal capacity, and their placement under guardianship where their decisionmaking is substituted by a third party, a guardian. guardianship is regulated under the 1964 civil code (hereinafter “the civil code”), without any modification since the code was enacted. persons with mental disabilities can be deprived or restricted of legal capacity on the grounds of mental disability. full deprivation of legal capacity and placement under plenary guardianship can be described as acivil death, because a person under plenary guardianship automatically loses the authority to act in all aspects of his or her life. a person under partial guardianship is restricted in the exercise of numerous rights. the slovak legislation does not provide persons with mental disabilities with any possibility of supported decisionmakingwithout restrictions on their legal capacity, as required by article 12 of the crpd. according to the civil code, a court’s decision on deprivation and restriction of legal capacity can be based exclusively on a diagnosis of a mental disability and thus fundamentally affect a “group” of persons with disabilities. deprivation and restriction of legal capacity leads to an automatic presumption of incompetency, in, inter alia, family matters (restrictions of or completely bars to marriage and parental rights), contractual mattersand political participation, including prohibition from voting and also consenting to medicaltreatment. pursuant to article 6(6) of the act no. 576/2004, the health care act, legal representative (appointed guardian) is entitled to undertake informed consent declaration; the incapableperson shall be involved in the decision making as much as his/her capacities allows. the healthcare act is silent on the definition of incapable person. however, according to the slovak civil code incapable persons, as defined by law, are those under plenary guardianship.if the guardian refuses to give his or her consent, health care provider may turn directly to the court to decide on the health care. the law specifies that this step must be in the interestof incapable personhowever, it is the guardian who decides onthehealth care;thelaw presumeincapacity and requires only the involvement of person under guardianship, (e.g. providing information, explanation, etc.) not his/her decision. an automatic restriction of certain right, in this case the right to vote based on guardianship was recently criticised by the european court of human rights in the case of alajos kiss v. hungary. the court stated that automatic restrictions on the right to votbased on restrictionslegal capacity were not permissible. the health are ct automatically excludes persons under guardianship from taking decisions on their health care this situation can lead to arbitrary decisions on health care, including de facto arbitrary deprivations of liberty in psychiatric institutions. act no. 40/1961, the civil code, article 10.act no. 6/2004, the health care act, article 6(7).alajos kiss v. hungary, application no.38832/06, judgment of 20 may 2010. 10 suggested questions for the slovak government: what policy and legislative amendments are planned to prevent institutionalization in social care institutions and ensure the right to independent living and being included in the community how will the government ensure deinstitutionalization and establish community-based services? how will the government secure that persons under guardianship are not automatically excluded from decisions on their health care c. right to education (article 13 icescr) article 13 provides that everyone has a right to education. the states must ensure the equal enjoyment of this right for all people, by not only refrainingfrom infringement of this right, but also by protecting all individuals from discrimination and ensuring an equal access to education for all children regardless to their disability.by ratification of the crpd, slovakia has bound itself to establish the inclusive education system at all levels of education including lifelong learning that would ensure thefull development of human potential of people with disabilities and their effective participation in the society (article 24 crpd). the requirement for abandonment of the double track system that excludes children with disabilities from mainstream education is also expressed in other un documents, e.g. the committee on the rights of the child in its general comment no. 9 emphasised that “inclusive education should be the goal of educating children with disabilities.further, the un special rapporteur on the right to education, mr. vernor mu•oz,identified an obligation of the states to transition from the special education paradigm to an inclusive education paradigm with the aim of preventing discrimination. in his 2007 report for the human rights council, mr. mu•oz emphasised:the special schools, often based on the belief that persons with disabilities are uneducable and a burden on the mainstream educational system, often were and remain inflexible, nonindividualstudent specific and they fail to provide or offer optimum results for their students. the negative impact of these beliefs is reflected on national and international educative assessments. […]in addition, the practice of separating students with disabilities can lead to greater marginalization from society, a situation that persons with disability face generally, thus entrenching discrimination. in contrast, inclusive education has been shown to general comment of the committee on the economic, social and cultural rightsno.13: the right to education (art.13) from 08.12.1999, e/c.12/1999/10., para 36 crc, general comment no. 9.the rights of children with disabilities, 2006,crc/c/gc/9, para. 66. 11 limit marginalization. this marginalization contributes to misconceived stereotyping, prejudice and thus discrimination.it is indisputable that slovakia must ensure the right of every child to choose and receive education in a wide range of available and accessible inclusive schools and schooling facilities as well as to provide a sufficient support for each child according to their needs to fully fulfil this right.the term “inclusion“or inclusive approach“ in the area of education is not recognised by the slovak legislation. the former law on primary and secondary education valid in slovakia until2009regulated only the education of children with special educational needs in special schools. the new act no. 245/2008 col. (hereinafter “the education act”) allows for children with special educational needsto attend, under certain conditions, mainstream schools through “school integration”.however, the preference of individual “integration” of children with disabilities is not expressed in the law, neither is the right of the child to be taught primarily in the inclusive setting. further, there are no national policies or other national documents that would anchor the commitment of the government to establish an inclusive educational systemas proposed by the special rapporteur on the right to education.the legislation does recognise the parental right to choose the form of education for their child, this right might be exercised only to the extent that they can choose a school or educational facility that provides an education that correspondthe abilities, health state, interests and hobbies of the childthus, in case the school does not have an appropriate environment available for the child, the parent cannot freely decide on the placement of their child there.moreover, some methodological documents discourage the parents from placintheir child in regular schools against the recommendation of the assessment centre.an nternal methodological document of the ministry of educationstates that: education of mu•oz, v. the right to education of persons with disabilities, report of the special rapporteur on the right to education, 2007,a/hrc/4/29, para. 11.act no. 29/1984 col. on system of primary and secondary schools. art. 2 (i) of the act no. 245/2008 col. states that „a special educational need is a requirement for accommodation of conditions, content, form, method and approaches in education of a child or a pupil, which stems from their disability or talent or their development in a socially deprived environment, use of which is necessary for the development of capacities or individuality of the child or pupil and for attainment of an adequate level of education and adequate inclusion in the society“art. 2 (s) of the act no. 245/2008 col. states that “the school integration means education of children or pupils with special educational needs in classes of schools or educational facilities for children or pupils without special educational needs.the right to education of persons with disabilities, report of the special rapporteur on the right to education, vernor munoz from 19 february 2007, a/hrc/4/29, para. 26art. 144(5) of the act no. 245/2008 colthe legislation recognizes two kinds of assessment centers for children with special educational needs: centers for pedagogicalpsychological consultancy and prevention, under art. 132 and centers for special pedagogical onsultancyunder art. 133 of the act no. 245/2008 col.an internal methodical material of the state school inspection from 2009 children with intellectual disabilities by integration in mainstream schools is not recommended from the expert point of view, and that in case there is a suspicion that the protection and care necessary for the interest of a child is not provided, the director of school is obligated to notify the responsible organ about the violation of the rights of the child.this document clearly incites the employees of the school inspection and the directorof schools to initiate court proceedings against parents who are not willing to acceptrecommendationof psychologist from the assessment centre and wish to place their child with intellectual disabilities into a mainstream schoolalthough the legislation foresees the possibility of integration of children with disabilities into mainstream schools, several provisions impose limitations that make the access of the children with special educational needs to mainstream schools more difficult.the regulation of the ministry of education no. 320/2008 imposes a limit of threechildren with disabilities in a mainstream class.further, the director of the school or the assessment centre may decide that an integrated education is not in the interest of the childor thatthe exercise of the right of a child with special educational needsto an integrated education restricts the rights of other children.the education of children with disabilities in slovakia is currently mainly provided in special schools which are segregated from mainstream educational systems and facilities, and the educational attainment of these scholars is lower: thus children with disabilities are denied the right to education on an equal basis with others. in their report submitted to the committee the government admitted that education received at special schools except the education from special schools for mentallyhandicapped pupils, is equal to the education received at primary and secondary schoolsas slovakia failed to submit any statisticdata concerning the numbers of children with psychosocial and intellectual disabilities in special schools and in mainstream schools, mdac provides the committee with relevant data.as seen in tab , only about 35% of children and pupils with disabilities were individually integrated in mainstream primary schools or kindergartens in 2009. the number of individually integrated children has slightly risen since 2005; however, there is no significant growth that would suggest that individual integration is preferred by the practice. further, as seen in table 5,only about of children with special educational needs attend secondary schools, which is a gross disproportion comparto the fact that almost of childrenwithout special educational needs continue to secondary education. the lack of further education for people with disabilities lowers their chances on the open labour market, which results in low employment rates of people with disabilities, and increases the likelihood that they will live in poverty art. 13(2) of the regulation of the ministry of education no. 320/2008art. 29(10) of the act no. 245/2008 col.art. 29(13) of the act no. 245/2008 col.see paragraph 463 of the report submitted by the slovakian government; emphasis added. table no. 4: number of children with special educational needs (sen) in special and in mainstream kindergartens, primary schools and secondary schoolskindergartens and primary schoolssecondary schoolsallspecialmainstream pecialmainstream 193579614572456116 750280470512470042 8950 865268438830 664421243478889589 575832743254946308tableno. 5: number of children with and without special educational needs in primary and secondary schools children with sen in primary schoolschildren without sen in primary schoolschildren with sen in secondary schoolschildren without sen in secondary schools individually integrated individually integrated , n/a720, n/a889 , , 596, 1 667 , , 29610 , 910 , 15 56611 , ,347 , , 477, , 277table no. 6: number of children with special educational needs in public schools with the emphasis on children intellectual disabilities. school/ year all children with special educational needs ,015 , , , , , children with intellectual disabilitiesin special schools 1,101 , ,155 , , , children with intellectual disabilities in special integrated classes, , 5 5 , , there are around 25000 children with intellectual disabilities in slovakia. as seen in table , only abou25% of all children with intellectual disabilities are integrated in public mainstream schools. further, according to tab3, compared to 17,950 children with data from the replies from the government of slovakia to the list of issues to be taken up in the connection with the consideration of the third periodic report of slovakia. human rights committee.data from the statistical yearbook of the institute on information and prognosis in education.data from the statistical yearbook of the institute on information and prognosis in education. intellectual disabilities in primary schools in 2010, only 4153 children attend some form of secondary school, which means that less than of children with intellectual disabilities receive secondary education. moreover, as seen in tab none of the pupils with intellectual disabilities attend higher schools, such as grammar schools (gymnázium”)or higher technical school (“vyššia odborná škola”).table no. 7: children with intellectual disabilities in public schoolsnumber of children/ year kindergartens primary schools (individuaintegrated) 0 , , , , , special primary schools 15, 15, 15, , , , technical and training schools , , , , , , practical schools grammar schools 0 0 0 0 0 0 higher technical school 0 0 0 0 0 0 higher training school 0 0 0 n/an/an/athe concept of reasonable accommodation is not explicitly expressed in the law. the legislation sets forth the obligation for schools with children with special educationeeds to create special conditions through “individual education programme or education programmes for schools educating children with special educational needs.”these programmes should also consist of personal and material requirements that the school must meet in order to ensure full development of the abilities of the child. there is no obligation for schoolto reasonably accommodate a child who wants to attend ; the requirement for creating the specific conditions according to the education programme applies only for schools that already educate children with disabilities.thus, if school does not meet these requirements (which is the case of most of the mainstream schools), the director may refuse to accept the child with special educational needs. as the legislation does not impose any obligations for mainstream schools to adopt measures for providing reasonable data from the statistical yearbook of the institute on information and prognosis in educationart. 7(5) of the act no. 245/2008 col.art. 7(5) of the act no. 245/2008 col. 15 accommodation, the twotrack system continues to segregate children with disabilities from the majority. moreover, there is no action (in terms of policies or proposed changes to legislation) that would challenge the system. as already noted (see point a above, p.4), the only area of law where reasonable accommodation applies isin employment. in so far as the area of education is concerned, the failure to provide children with disabilities with reasonable accommodation constitutes unlawful discrimination on the ground of disability. suggested questions for the slovak government: how will the government fulfill its commitment to introduce in law and to operationalise an enforceable right to inclusive education how will the government ensure that the legal concept of “reasonable accommodation” applies to the area of education?
