1. European Convention on Human Rights and the European Court of Human Rights
The ECHR (or the European Convention on the Protection of Human Rights and Fundamental Freedoms) is a regional treaty among European nations. It was adopted in 1950 and entered into force in 1953. The ECHR sets out the civil and political rights and freedoms that Members States guarantee to their people. It is the first Council of Europe’s convention and its ratification is a prerequisite for joining the Council of Europe.
The ECtHR is established by the ECHR and based in Strasbourg, France. It oversees the implementation of the ECHR and has both contentious and advisory jurisdictions. Under its contentious jurisdiction, the ECtHR may hear complaints brought by individuals, group of individuals, or non-governmental organizations (alleging that a Member State has violated their human rights under the ECHR). There are a number of requirements that individuals must satisfy before bringing a complaint before the ECtHR, including the exhaustion of all possible appeal mechanisms in the domestic system of the Member State concerned. The ECtHR may also hear inter-State cases. Its advisory jurisdiction allows it to issue advisory opinions on the interpretation of any particular issue or article within the ECHR.
The ECtHR’s decisions are binding on all Members States of the Council of Europe. If a Member State does not abide by the judgments headed down by the ECtHR, it may be expelled from the Council of Europe. The enforcement of the ECtHR’s judgments is supervised by the Committee of Ministers, which is the decision-making body of the Council of Europe.
The ECHR does not expressly mention the rights of persons with disabilities, but the word “everyone” in Article 1 which stipulates that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in … this Convention” is interpreted to include persons with disabilities.
The ECHR also deals specifically with specific disability issues.
2. European Social Charter (“Charter”) and the European Committee of Social Rights (“Committee”)
The Charter is a Council of Europe treaty which guarantees social and economic human rights. It was adopted in 1961 and revised in 1996. It complements the ECHR (which guarantees civil and political human rights). The Charter sets out rights and freedoms as well as establishes a supervisory mechanism to guarantee that such rights and freedoms are respected by State Parties. The Charter concerns all individuals in and addresses areas including housing, health, education, employment, legal and social protection, free movement of persons, and non-discrimination.
The Committee determines whether or not national laws and practices of the State Parties are in conformity with the Charter. It consists of fifteen independent impartial members elected by the Council of Europe Committee of Ministers for a period of six years. Every year, the States Parties submit a report indicating how they have implemented the Charter in law and in practice. The Committee examines the reports and decides whether or not the situations in the States Parties concerned are in conformity with the Charter. Its decisions, known as “conclusions”, are published every year. If a State Party does not take action on a decision by the Committee (to the effect that it does not comply with the Charter), the Council of Europe Committee of Ministers addresses a recommendation to the State in question, seeking it to rectify the situation in law and/or in practice. Complaints of violations of the Charter may be lodged with the Committee.
All provisions of the Charter are applicable to persons with disabilities. Article E of the Charter (the non-discrimination clause) provides that “The enjoyment of the rights set forth shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status”. This Article E prohibits discrimination, inter alia, on the ground of disability. Article E covers not only direct discrimination but also all forms of indirect discrimination. Indirect discrimination may arise whereby a State Party fails to take due and positive account of all relevant differences or adequate steps to ensure that rights and collective advantages open to all are genuinely accessible by all.
Article 15 the Charter deals specifically with the right of persons with disabilities and applies in respect of all disabilities: physical, mental, and intellectual. It reflects upon and advances changes in disability policy which have occurred over the last decade, departs from welfare and segregation, and moves towards inclusion and choice. The overall aim of Article 15 is to ensure the effective exercise of the right of persons with disabilities to independence, social integration, and participation in the life of the community. Article 15 reads as follows:
The right of persons with disabilities to independence, social integration and participation in the life of the community With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:
1 to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private;
2 to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services;
3 to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.
The Charter also deals with specific disability issues. Further information is accessible through our Inclusive Education and Supported Employment sections.