France condemned again
“A major decision that could be revolutionary if properly implemented by the executive” – Magali Lafourcade, Secretary General of the French National Consultative Commission for Human Rights (CNCDH)
On 17 April 2023, the European Committee of Social Rights (ECSR) publicly announced its decision on the merits of the case of European Disability Forum (EDF) and Inclusion Europe v. France1. The Committee has once again condemned France for neglecting the rights of people with disabilities and thus violating the rights set out in the European Social Charter. For nearly five years, several French associations fought to have France condemned and to advance their fight for effective social rights, freedom, and dignity for people with disabilities. Although the decisions of the ECSR are not binding, this condemnation puts pressure on the French government. It pushes the signatory States to build a more inclusive society that respects the rights of everyone.
Violations of the social rights of people with disabilities are not isolated incidents, but a systemic problem. Whatever the nature or degree of the disability, the people concerned are victims of ongoing discrimination and social exclusion and face major obstacles preventing them from gaining access to adequate education, to the job market and to a decent health and insurance system. Many stereotypes persist in society, creating an imbalance of power and leading to regular violations of their human rights.
The issue of protecting people with disabilities is gradually coming back to the forefront in recent years, thanks to the involvement of various civil society players fighting to claim the place of these people and denounce the overall lack of appropriate policies.
As a result, a process of considering and modifying public policies is developing step by step in Europe, but given the urgency and importance of this issue, more is needed.
After recently deconjugalising the disabled adults’ allowance (AAH) with the aim of guaranteeing greater autonomy for women with disabilities2, France hosted a national disability conference (CNH) on 26 April. Provided for every three years by a law passed on 11 February 2005, this conference is chaired by the President of the Republic in order to mobilise all stakeholders in the field of disability and initiate a new dynamic to address the issues raised. Many NGOs boycotted the CNH and condemned the way it was run. Among them, Unapei stated that it had contributed to the CNH’s preparatory working groups, but that none of its proposals had been acted upon3. The government justifies its inaction by claiming budgetary constraints. In fact, the progress made in recent years has been limited and even disconnected from the day-to-day realities of the people concerned. This inconsideration and ignorance of the realities of people with disabilities is similarly blamed on the French government’s failure to take account of the AAH, which remains below the national poverty line even though the material needs of people with disabilities are particularly high. Similarly, although measures have been taken following previous calls to order (autism plans put in place following the 2004 ECSR decision4), the French government’s efforts seem modest and the measures incomplete.
As in the rest of Europe, there is a growing gap between theory and practice. Although more and more regulations govern the specific situations of people with disabilities, they are not systematically applied. In Portugal, a change in the law has eased the rules on guardianship, but prejudice still prevails. As a result of this societal perception, legal capacity is often withdrawn from people with disabilities because they are considered less capable. In Germany, a new law planned for 2023 will give people with disabilities the power to refuse a guardian and have their own decisions prevail. In practice, however, lawyers and guardians are given a great deal of leeway, which hampers the effectiveness of this rule.
The implementation of new measures and European initiatives reveal some progress – at least in recognising the difficulties faced by people with disabilities – but the statistics show that this is far from enough. In Europe, only 51.3% of disabled people have a job, compared with 75.6% of non-disabled people. For women and young disabled people, the figure is even lower: 49% for the former and 47.4% for the latter. In terms of health, the WHO states that health establishments do not make the necessary accessibility arrangements for people with disabilities, making access up to six times more difficult for them. These inequalities result from the unfair conditions faced by people with disabilities, including poverty and barriers within the healthcare system.
The fight for a paradigm shift
These practices are all the more reasons for civil society players to speak out and make their demands, raising their voices in the face of the passivity of governments and the disregard for real experiences fuelled by the constant stigmatisation of people with disabilities.
The ability of civil society organisations to influence public debate is undeniable and of great use in improving the effectiveness of the social rights of minority groups. Civil society players have access to a wide variety of tools tailored to the specific nature of their claims, enabling them to make their voices heard on the public stage by a government that is often not very receptive to the issues they address. Associations specialising in defence of people with disabilities regularly make their voices heard through demonstrations, public actions, annual reports, petitions, and the collective complaints mechanism set up by the ECSR.
Take the example of the international organisation the European Disability Forum (EDF). It has a range of tools to monitor EU initiatives and make recommendations to advance the rights of people with disabilities. As well as lobbying national and international bodies – notably through collective complaints – the NGO attends conferences and seminars within the institutions to inform the public about the discussions underway. It also publishes statements welcoming or criticising recent initiatives and produces specific complaints.
For example, EDF took part in the protest, supported by many stakeholders, against the draft additional protocol to the Oviedo Convention. Since 2014, the Council of Europe and its Bioethics Committee have been considering the regulation of involuntary psychiatric treatment and placement, which will become internationally and legally binding if adopted. Organisations representing psychiatric users, survivors and people with disabilities, as well as United Nations experts and internal bodies of the Council of Europe, are opposed to this protocol in the name of protecting the human rights of the people concerned. This long struggle has not been in vain: in May 2022, the Committee of Ministers of the Council of Europe decided to take into account civil society complaints and suspend the adoption of the project until the end of 2024. The announcement of this postponement is a victory for the NGOs fighting against this regulation, since they consider the forced treatment it governs contrary to the human rights of people with disabilities. While the ultimate aim would be to repeal the rule altogether, the NGOs see this postponement as a sign that they have been heard, whereas they had the impression that they were not being listened to.
The role of civil society actors is essential in the fight for minority rights. NGOs’ grassroots work and their recognition in the national and international sphere enable them to make the voices of people directly affected by state measures be heard, but they are rarely listened to. Defending the rights of people with disabilities involves a notably silent community that is excluded from the public arena. Through awareness-raising campaigns, civil society players communicate the realities experienced by these people, both to the rest of society and to the public authorities. In the face of government scorn, NGOs are putting forward recommendations rooted in the reality of the individuals concerned and communicating on sensitive issues. For example, the issue of consent in medical procedures and the importance of individual autonomy are particularly sensitive points, in addition to the fight against discrimination, exclusion and the invisibility of people with disabilities.
Ambivalent responses from the Council of Europe
Thanks to the mobilisation of Unapei, APF France handicap, Unafam and FNATH in the face of the French government’s failure to meet its obligations under the European Social Charter, the Council of Europe has been able to observe the lack of progress and the violation of the rights of people with disabilities, despite the promises made by the State. The Presidents of the associations behind the decision of 17 April 2023, proud to see the consequences of their work, see this support from the European Committee of Social Rights as “recognition of our actions and our determination to change things”5. This victory proving the benefit of non-state actors to society is not an unusual case, but part of a long line of decisions brought before the various institutions of the Council of Europe by multiple associations and non-governmental organisations contributing to the fight for the recognition of the human rights of people with disabilities.
The collective complaints procedure has often proved effective in convicting a government concerning the rights of minority communities. In the field of disability, France had already been condemned in 2013 for its policy on the integration of autistic children6. Still in the area of inclusion of people with disabilities in the education system, the Committee recognised that the right to inclusive education was not effective in the French Community of Belgium7. Finally, the lack of health protection for children with disabilities was recognised by the Committee when it condemned the Czech Republic in 20208.
In recent years, several countries have been condemned by the European Court of Human Rights (from now on the ECtHR) because of their management of the rights of people with disabilities. The ECtHR has defended sexual and reproductive rights9, the right to education and access to education10, and has condemned the automatic withdrawal of the right to vote from people under guardianship11. Although more and more cases concerning people with disabilities are being brought before the ECtHR, the responses are not always convincing. Many violations go unpunished because the judges consider the applications inadmissible. For example, the ECtHR has ruled that States are not obliged to integrate people with disabilities into ordinary schools (public or private)12 or to guarantee the unconditional right of people with mental disabilities to exercise their right to vote13. It seems that the Court only carries out analyses based on the personal situations of the individuals concerned and only punishes flagrant violations by States, thereby contributing to the trivialisation of discrimination against people with disabilities. Despite the Council of Europe’s intervention, the judges still seem too conformist, revealing an interpretation of human rights mainly oriented towards defending validist societal norms, thereby contributing to the marginalisation of disabled minorities. In his dissenting opinion in Caamano Valle v Spain, Judge Lemmens argued that there was a difference between legal and mental capacity. In so doing, he quotes the Human Rights Commissioner, who points out that excluding people with disabilities from exercising their right to vote deprives them of “any possibility of influencing the political process and shaping the policies and measures that directly affect their lives”. Amplifying the impact of his opinion, he added that this exclusion also deprives “society as a whole […] of a legislative body that [reflects] all its diversity”14.
However, while Helen Portal (advocacy officer for the NGO Inclusion Europe) recognises the value of such mechanisms, she regrets the slowness of the procedures and the lack of impact on governments, which do not seem to take the decisions of the European Committee of Social Rights seriously15. During the three months following the ECSR’s decision, before it was officially published, the applicant NGOs had no opportunity to discuss the matter with France. After that, there semmed to be no real exchanges to address the issues raised by the Committee. The Presidents of the associations behind the decision of 17 April 2023 cannot, therefore, be fully satisfied: the decision reveals the continuing failings of the French State regarding the human rights of people with disabilities, their relatives, and their families, and is not followed by any action plan. Despite recognising the facts they are accused of, the States tend to consider that the problems are old and no longer explain the Committee’s decisions. Given the time lag between the complaint’s lodging and the ECSR’s decision publication, “the government in question blames the previous government […] there is a lack of willingness to take these decisions seriously16. In fact, time is measured in years, and the lives of people with disabilities do not seem to have changed directly and effectively because of the decisions not to respect the rights guaranteed by the European Social Charter to the States of the Council of Europe. In its determination to boycott the CNH, Unapei explains that despite this decision by the Council of Europe, no responsibility has been taken by the government. In this sense, the CNH appears to be no more than a “new communication operation” on the part of the government17.
Conflict of rights: individual autonomy denied
The human rights of people with disabilities are regulated at a national and regional level, but also at the international level by the International Convention on the Rights of Persons with Disabilities (ICRPD). By ratifying this convention, countries undertake to guarantee and promote the whole exercise of the human rights and fundamental freedoms of persons with disabilities without discrimination. Adopted by the United Nations in 2006, it has to be said that a large number of people with disabilities still find themselves in situations that are unsuited to their needs and deprived of their most fundamental rights. In this case, article 12 of the CRPD, which guarantees the recognition of legal personality under conditions of equality, has been particularly undermined in recent years. This right protects people with psychosocial disabilities in the name of respect for their individual autonomy, and supports the prevalence of assisted decision-making and respect for the person’s choices and preferences rather than authorising third parties to give consent on their behalf. Going against the spirit of this international text, the draft additional protocol to the Oviedo Convention, mentioned above, demonstrates the conflict of laws between the obligations of States at regional and global levels and the failure to comply with United Nations regulations.
Similarly, people with intellectual and psychological disabilities are still legally “incapable” in France. These regulations illustrate the authorities’ contempt for people with disabilities and their infantilisation. As well as leading to further institutionalisation, these measures carry the risk of forced treatment. An increase in the use of psychiatric coercion has been noted in France: in violation of Article 25 of the CRPD, healthcare is provided without the free and informed consent of the people concerned. These legislative abuses are proof of the denial of the legal capacity of people with disabilities. Systemically, these people are considered incapable of discernment and consent since this automatic solution is less complicated for the authorities and healthcare structures to manage than would be an individualised and personal assessment of each patient, taking into account the level of disability and the experience of the users. This approach leads to social inequalities and contributes to a spiral of stigmatisation of people with disabilities, exacerbating feelings of distress and emotional and mental incomprehension among the individuals concerned.
According to Stéphanie Wooley, these issues are due to a blatant imbalance of power, which can only be remedied by a courageous and innovative political commitment, and using alternative solutions based on a social approach with human rights as its premise18. By highlighting individual violations, the Social Right Tracker contributes to this desire to point the finger at the current weaknesses of governments by letting the people concerned express themselves and advise them in an informed way. More data and information on changes will be collected through this platform, serving as a resource for NGOs. Indeed, this task remains a real challenge for NGOs such as those behind the collective complaint of 17 April 2023. In situations of discrimination, such as those against people with intellectual disabilities, the problem is that such acts are not systematically reported and recorded. Many people are unaware of what constitutes discrimination, while others do not even have access to justice due to legal incapacity and lack of the necessary knowledge. All these difficulties make it harder to collect data and hamper the fight for effective social rights for people with disabilities.
- ECSR, 17 April 2023, European Disability Forum (EDF) and Inclusion Europe v. France, Complaint no. 168/2018.
- Deconjugating AAH changes the way the allowance is calculated for recipients in couples. From October the 1st of 2023, it is calculated solely on the basis of the resources of the disabled person concerned, and no longer on the basis of the combined income of the two members of the couple. This means that the women concerned receive an individual allowance, independently of their spouse, thereby reducing their financial dependence. See the official information website: https://www.monparcourshandicap.gouv.fr.
- Unapei, Press release “Unapei will not take part in the National Disability Conference and calls on the government to assume its responsibilities by responding to the violations of fundamental rights denounced by the Council of Europe”, Paris, 26 April 2023. https://www.unapei.org/wp-content/uploads/2023/04/Communique-de-presse-Unapei-CNH-26.04.23-4.pdf.
- ECSR, 8 March 2004, Association internationale Autisme-Europe (AIAE) v. France, no. 13/2002.
- Pascale Ribes, President of APF France handicap; Sophie Crabette, Deputy Secretary General of FNATH; Marie-Jeanne Richard, President of Unafam; Luc Gateau, President of Unapei, “Réclamation collective – Dossier de presse”, 17 April 2023.
- ECSR, 11 September 2013, European Action for the Disabled (AEH) v France, no 81/2012.
- ECSR, 3 February 2021, Fédération internationale des Ligues des droits de l’homme (FIDH) and Inclusion Europe v. Belgium, no. 141/2017.
- ECSR, 23 November 2020, European Roma Rights Centre (ERRC) and Mental Disability Advocacy Centre (MDAC) v. Czech Republic, no. 157/2017.
- ECtHR, 22 November 2022, G.M. and others v. Republic of Moldova, no. 44394/15.
- See ECtHR, 30 January 2018, Enver Sahin v. Turkey, no. 23065/12; ECSR, 10 September 2020, G.L. v. Italy, no. 59751/15.
- ECtHR, 15 February 2022, Anatoliy Marinov v. Bulgaria, no. 26081/17.
- See ECtHR, 8 November 2016, Sanlisoy v. Turkey, no. 77023/12; ECtHR, 18 December 2018, Dupin v. France, no. 2282/17; ECtHR, 17 December 2020, Charles and others v. France, no. 3628/14.
- See ECtHR, 2 February 2021, Strobye and Rosenlind v. Denmark, no. 25802/18 and 27338/18; ECtHR, 11 May 2021, Caamaño Valle v. Spain, no. 43564/17.
- ECtHR, 11 May 2021, Caamaño Valle v. Spain, no. 43564/17, p.33.
- Interview by the Social Rights Tracker team with Helen Portal, advocacy officer for the NGO Inclusion Europe, 5 June 2023.
- Unapei, Press release, cited above.
- Wooley S. “It’s not care if it’s forced”. A paradigm shift underway through a human rights lens. L’Information psychiatrique 2020; 96 (1).