DSQ > Winter/Spring 2007, Volume 27, No.1-2
Abstract

The Czech Republic has been in transition from communism to democracy since 1989. How disability has been defined and understood in Czech society is described in political, social and cultural context. The state of law and disability policy is illustrated by a case study involving a mother with a disabled son who had to be placed in an institution due to the lack of financial resources. The case is described as an insight into the current state of disability law and its interpretation in the Czech Republic. This case is examined as a human rights issue and it is argued that the transition from medical model and welfare law to a civil and human rights law, with regard to people with disabilities, has not yet been completed in the Czech Repulic.

Keywords: Czech Republic, disability, disrimination, law, policy, international, Constitutional Court case

Introduction

This article outlines the history and recent development of Czech disability rights law and discusses the extent to which the law has been influenced by the recent development of international disability laws and policies. The article is divided into two parts. The first part examines the historical, political, and legal background of the Czech disability system. The second part presents a case of disability discrimination, which was the first and only discrimination case brought in front of the Czech Constitutional Court after the Court was established in 1993. The article concludes with a comparative analysis of Czech disability law and policy on one hand, and the developing area of international disability law on the other. Recent development in international human rights jurisprudence may also shed light on how Czech society, as an example, may reexamine its own approach to disability and shift its understanding of disability from medical to social constructionist model.

Definition and the Number of People With Disabilities

In the Czech Republic, the statistical data on the number of people with disabilities differ in social, health or cultural contexts. Overall, Troska and others estimate that there are 1.3 million people with disabilities based on a 10 percent estimate where 10 percent is the average projection of other European countries (Troska, 1999). There are several sources of disability statistics. The Ministry of Labour and Social Affairs collects data on disability pension beneficiaries, and the Ministry of Health collects data on those receiving health insurance (temporarily unemployed) beneficiaries. According to the Czech Statistical Office, there were 563,000 people receiving disability pensions in 2004 (Czech Statistical Office, 2005). "The Report on the Situation of the Disabled" submitted to the Government of the Czech Republic in 1992 (Governmental Board for People with Disabilities, 1992) estimates that there are approximately:

  • 60,000 visually impaired persons, including 17,000 blind persons;
  • 300,000 hearing impaired persons, including 15,000 profoundly deaf;
  • 60,000 persons with speech disorders;
  • 1,500 deafblind persons;
  • 300,000 mentally ill persons (in institutions or hospitals);
  • 300,000 persons with locomotive impairments;
  • 530,000 diabetics;
  • 150,000 persons affected by vascular and cerebral incidences;
  • 140,000 epileptics; and
  • 200,000 psychiatric patients (those in need of psychiatric therapy but not institutionalized).

There is a difference between the number of people who self-identify as having a disability, the number of people who qualify as disabled for the purpose of various benefits and compensations, and the number of people who are classified as fitting into one of three categories of disability (severely disabled, very severely disabled and very severely disabled with a companion) according to health professionals. Given the fact that having a disability or being perceived as a person with disability is a stigma in contemporary Czech society, many people who have medical problems do not refer to themselves as disabled but ill. Disability is understood by the general public as being blind, deaf, developmentally disabled or in a wheelchair. Many individuals, especially those who acquire disabilty later in their life, never become part of a disability community or culture, but may access the disability pension and benefits system.

The Czech law does not include a coherent definition of disability and/or "persons with disabilities". People with disabilities are referred to as "persons with changed labor ability" in employment law (No. 435/2004), "invalids" in social policy (No. 100/1988, amended in 2004 to "people with health disadvantages"), "people with health impairments" in health policy (No. 47/1997), "people with partial/full invalidity pension" (No. 155/1995) or "children with special needs" in education policy (No. 561/2004). To decide whether a person is disabled, a team of medical staff called a "Medical Advisory Committee" assesses the person's condition and decides whether the applicant should receive one of three types of Disability ID Cards. These three types are: "very severely disabled with a companion" (for example for blind, deaf or physically impaired children under 15); "very severely disabled"; and "severely disabled". All three types include various social, economic, transportation and cultural advantages and discounts for holders (Medical Advisory Committee, 2003). This ID card assessment procedure is necessary for the purpose of social security benefits, invalidity pensions, or support in unemployment. Persons with disabilities are defined as "people who due to their invalidity cannot perform gainful employment" (Medical Advisory Committee, 2003). "Invalidity" is defined as a long-lasting (more than one year) or permanent health condition that has a negative impact on the ability to perform work. "Handicap" is a negative consequence resulting from disability in interaction with others, and in social, economic and other areas (Medical Advisory Committee, 2003). These definitions of "invalidity" and "handicap" are similar to the WHO's definition in International Classification of Impairments, Disabilities, and Handicaps from 1980.1 "People first" language, which emphasizes the person first and then their disability condition, is not substantially widespread in the dominant society, only among nongovernmental organizations for persons with disabilities (Wilson, 2001).

The Current State of Czech Disability Law and Policy

More than 17 years after the fall of communism in Central and Eastern Europe, the Czech Republic still does not have a comprehensive disability discrimination law based on a social model. The Czech disability law has not fully reformed and relies on outdated law in many areas of life. During the communist history of the country (1945 - 1989), disability issues were not fully recognized as problematic. Civil society and social movement, including a disability rights movement, were almost nonexistent. The communist government did not place a high priority on ensuring access for people with disabilities. Discrimination against the disabled was not a subject of significant policy or public debate either (Human Rights Report, 1993). Former Czechoslovakia had an extensive system of special schools, sheltered workshops and institutions to segregate individuals with disabilities and to keep them hidden from public view. Because of such segregation and isolation, there was little motivation to eliminate the architectural or social barriers in the general society (Independent Living, 2003).

In contrast to legislation in the United States, there are no comprehensive disability antidiscrimination laws such as Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990, that would cover disability discrimination in general and that would use a social model as a starting point for understanding disability issues. The rights of persons with disabilities are protected, to some extent, in general provisions of the Czech Constitution. International Treaties and the Czech Constitution, that includes the Charter of Fundamental Rights and Freedoms, are superior to statutes and other state or local provisions and regulations. The Constitution and the Charter refer to disability only once in relation to employment. Article 3 of the Charter refers to equality of everyone, but it does not explicitly mention people with disabilities. It reads: "Fundamental rights and freedoms are guaranteed to everybody without regard to gender, race, color of skin, faith and religion, political or other consciousness, national or social origin, belonging to national or ethnic minorities, property, descent or other status" (Charter of Fundamental Rights and Freedoms, 1993). Although it is not necessary to list all characteristics that have historically caused discrimination and oppression of some people, including disability as a protected category would increase the recognition of disability issues in the courts. Nevertheless, this article should have been applied to people with disabilities because they have equal rights as others. Disability is explicitely mentioned in Article 29 that guarantees the right to special work conditions and special protection for women, children, and people with disabilities at their workplaces and in relations with employers.

Disability issues are included as parts of existing statutes that cover specific areas, such as employment, education, health care, housing, accessibility, social welfare or rehabilitation. Disability is generally mentioned for the purpose of various benefits rather than for protection of rights, which is the consequence of a social welfare model implemented in the past and still pervasive in the present. The only specific disability law is the Sign Language Act of 1998. This Act guarantees free education in sign language for all D/deaf students in regular schools. However, it lacks implementation provisions and thus it is not clear who will pay for sign language interpreting services or personal assistance. Currently, the Social Security Act No.100 of 1988 only provides for 24 hours of free interpreting services per year. In most cases, the school has to arrange for its own funding if it wishes to integrate a deaf child.

Overview of Czech Disability Law

In the area of employment, Governmental National Action Plans on Employment have been drafted every year since 1998. The Employment Act No. 1 of 1991 (amended as No. 435 of 2004) is the main employment law that also mentions disability as a protected category, defines sheltered workshops and qualifies employers eligible for governmental support. Under the EU law, there are two types of policies related to employment, active and passive. The active employment policy includes three incentives to employers to hire persons with disabilities. These are quotas, taxes, and purchase of products. Czech Republic subscribes to all of them. Every company that employs more than 25 people has to employ at least 5 per cent of people with disabilities, pay higher taxes, or buy goods made by an enterprise employing more than 50 per cent of people with disabilities.

The Education Act No. 29 of 1984 (amended as No. 561 of 2004) aims at integrating children with disabilities at regular schools whenever possible. If the child's disability hinders integration, there are special schools for deaf blind, mentally or learning disabled children. Governmental Educational Ordinances of 1992, 1994, 1998 provide for Individual Education Plans, Special Education Centers, assistive technologies and other support that are provided by the state. In reality, integration varies from school to school, depending on the decision of a particular school and its director who decides whether or not a child with a disability is accepted into the mainstream education process.

Social services and rehabilitation are provided by the Social Services Act No. 100 of 1988 and Social Needs Act No. 482 of 1991. Social Benefits Act No. 117 of 1995 includes five categories of means-tested and five of flat-rate benefits for people with "social needs" defined by the family income level. This law provides for a variety of benefits including housing, transportation, rehabilitation aids, and unemployment.

The health insurance of persons with disabilities is guaranteed by the Health Insurance Act No. 47 of 1997 (amended as No. 285 0f 2002). The health care system in the Czech Republic is free for all citizens paid from taxes and health insurance. Health insurance covers some technical and medical equipment for people with disabilities.

The accessibility of environment is guaranteed by the Building and Planning Act No. 50 of 1976 (amended as No.83 of 1998). However, because this act lacks monitoring mechanisms and fines, it is not effective. The Technical Requirements for Persons with Limited Motion and Orientation Ordinance No.174 of 1994 require all publicly-used places that provide services, culture, educaton, health care or accomodation to be accessible. Only new constructions built after 1994 are covered and the majority of public places remain inaccessible.

Amended Social Service Act No. 100 of 1988 (2006)

For the past decade, persons with disabilities and their representatives have been advocating for a voucher system that would allow them to shop for services (Vysokajova, 2000). This voucher would enable them to receive services in the most convenient and preferable setting, whether it is their home, a nursing home, group home or an institution. In 2006, the new amended Social Service Act was approved. It brought the idea of vouchers to shop for services into place. The amount of money suggested for persons with disabilities is substantial. For example, for children fully dependent on their parents, the benefit will climb up to $500 per person per month, which is almost twice as much as the national social living minimum and more then a minimum wage. The amount of support will vary depending on the severity of the disability. The Social Service Act, for the first time in Czech history, defines a broad range of already existing and available services, such as daily care, day habilitation, rehabilitation, group homes, home care attendant services, one-to-one services, et cetera, and sets up requirements for accreditation, certification and approval of agencies and social workers providing those services. In that direction, the law is a clear break-through to the disability history of Czech Republic.

However, the voucher is based on a person's dependency. And there is a paradox in it: If a person improves and learns to do something independently or with a little help of a social care worker, the person with disability will receive less money because his dependency will not be that high. Thus, institutions will not work hard to make their clients and residents independent, because then they would lose money. So the way the voucher is set up now may actually encourage dependency of people with disabilities and could maintain the status quo of institutional care. A suggestion would be to base the amount of money on the hours a person with disability needs to perform daily activities, and not on the amount of dependency. Then the Ministry of Social Affairs would realize that nobody who is in the institutions and nursing homes needs care 24 hours per day and it would save money and also bring higher empowerment.

Antidiscrimination Act of 2006

The Antidiscrimination Act and and the new amended Social Service Act No. 100 of 1988 are the most recent developments in Czech disability law and policy. These two laws have been rewritten many times and it took almost 15 years to pass them in Czech Parliament due to strong institutional lobbyist groups. Given the political reluctance to endorse the Social Services Act during the past 14 years, there is a very little chance that we will see a comprehensive anti-discrimination law in the near future (Potucek, 1995; National Council for People With Disabilities, 2004).

The Antidiscrimination Act guarantees the right to equal treatment in areas of employment, membership of trade unions and professional nonprofits, social welfare, social benefits, health care, educations and access to goods and services including housing. However, architectural barriers, transportation, telecommunication, governmental services and facilities or a comprehensive list of places of public accommodations are not specifically mentioned. The law is very general and covers a broad range of groups. Specifically, it prohibits discrimination based on race, ethnic origin, gender, sexual orientation, age, unfavorable health conditions, religion or faith, language, political opinions, nationality, membership in political parties and organizations and labor unions, social origin, ownership of property, and marital or family status (Diskriminace, 2005).

Although "disability" is not included as a group, the law prohibits direct and indirect discrimination based on "unfavorable health conditions" (it does not include the term "disability"). Unfavorable health conditions are defined in Paragraph 4 as: a) a loss or limitation of physical, sensory or mental functions, b) anatomic loss or disfigurement of a body part, c) presence of micro-organisms, microbes, or other foreign object in the body resulting in a chronic illness, d) disease or functional disorder resulting in a necessity to assert special forms, methods and procedures in education; or mental or behavior disorders (Diskriminacni zakon, 2006). This definition seems to follow the medical model of disability and omits some social and cultural aspects included for example in the ADA, such as having a record of an impairment, or being "regarded as having such an impairment" ((ADA 42 U.S.C. 12102 (D) (2)) or a relationship with a disabled person. Interestingly, this law does go into social context by listing a few categories such as race and ethnic origin, faith and religion, and states that "it is unlawful to discriminate against" people "if they are regarded as having a relationship to a person of certain" race, ethnic origin, anticipated descent, religion, faith or because a person is nonreligious ( 2 (5), (6) and (7)). Although precise medical definitions are straightforward in defining whether a person has a disability if they are in court, I believe that integrating social aspect of disabilities reminds the general public of oppresion and ongoing discrimination in society and broadens the scope of coverage.

The proposed Antidiscrimination Act defines direct discrimination as a "less favorable treatment," and the indirect discrimination as "refusing or neglecting reasonable accommodations. unless it causes undue burden (3)" (Diskriminacni zakon, 2006). The Antidiscrimination Act's definition is similar to Article 2 of the EU Directive 2000/78/EC that reads: "Direct discrimination shall be taken to occur when one person is treated less favorably than another is." Similar to the EU Directive, the Antidiscrimination Act also provides factors that will be considered in determining whether or not an accommodation will cause a disaproportionate burden for the entity providing such accomodation. These factors are: a) the amount of benefits resulting from the accommodation for the person with unfavorable health conditions; b) financial burden for the entity carrying the action out; c) eligibility of financial aid and other assistance; d) consideration of alternative provisions to accommodate the person's needs." The EU Directive 2000/78/EC, Paragraph 21, also states that "to determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other cost entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance" (European Union, 2000).

In the case of disability-related discrimination, an individual can file a suit if his or her rights were violated or if he or she was discriminated against. The causes and consequences of discriminatory action must then be corrected (7(1)). If this is not a sufficient remedy, especially if "a fair reputation, dignity and respect in society of the person were impaired, an individual can request financial remedies" (7(2)). However, the evidence may be very difficult to establish as shown by American example and the ADA. An ombudsman office, established in 2002, provides for mediation, legal aid, independent research, recommendations, and information for the public.

CASE STUDY

The first and only disability discrimination case that has taken place in the Czech Republic since 1989 is Alena Skalova versus the Czech Republic (Czech Constitutional Court, February 2004). The remaining disability cases in the Czech Republic involve reductions in social benefits. The Skalova case is described here as an insight into the current state of disability law and its interpretation in the Czech Republic. This case is examined as a human rights issue and it is used to argue that the transition from a medical model and welfare law to a civil and human rights law has not yet been completed in the Czech Repulic. To support this view and for comparison purposes, the case is also analyzed under the European, U.S. and the United Nations laws, especially under the emergent Convention on Disability.

Alena Skalova v. the Czech Republic (Czech Constitutional Court, 2004)

Ms. Alena Skalova has a 16-year old son with severe physical disabilities. She is a single mother, working full-time. She was unable to afford personal assistance and disability services for her son. Therefore, she had to place him in a social-care institution. In the Czech Republic, adults with disabilities may receive disability pensions and increased benefits for so-called powerlessness that is measured on a family-income level. However, children with disabilities do not have the same right and thus recieve less money as compared to adults. Ms. Alena Skalova wanted her son to obtain the same rights as adults with disabilities in order for him to remain in the community (NRZP, 2004). She also realized that it is unlawful that the state does not provide for the same benefits and equal opportunities for families with a disabled child when compared to institutional care.

The National Council for Persons with disabilities, which provides for legal counseling, has also been concerned with discrimination against families with children with disabilities that is not in compliance with the constitutional principle of equal access of all citizens to help provided by the state (Article 30). The Council has provided Ms. Skalova with advocacy and legal advise and helped her prepare the complaint. However, only an individual person, not an advocacy group, can file a Constitutional Court complaint. Ms. Alena Skalova filed a suit against the Czech Republic in February 16, 2004. The National Council prepared a demonstrative ride to the Constitutional Court in Brno that attracted a broad attention of the media. Ironically, the Court was located in an inaccessible building to wheelchair users so the complaint was handed to one of the justices in front of the Court.

Seven months later in September 2004, the Constitutional Court dismissed the claim. The Court reasoned that its role was to oversee whether the society, including Ministries and the Government, complies with existing laws. The Court claimed that it does not have the authority and status to order the Ministry of Labor and Social Affairs to amend the Social Service Act of 1988 in order to cover children to the same extent as adults and guarantee the same social services to them, which was what Ms. Skalova requested.

In fact, the Ministry has been revising the Social Service Act since 1989. The Court said that "the Constitutional Court does not stand above the Constitution; its relationship to the legislative and executive bodies is only to be a supervisor and limiter in the case of unconstitutional acting. The Court does not possess the power to create or substitute the power of legislative and executive bodies" (NRZP, 2004). The Court further said that the claim was to create new rules and laws that define how the state welfare is distributed, although this distribution may not be experienced as fair by many other individuals besides Ms. Skalova. The Constitutional Court stated, however, that "it realizes that the claim's reasoning is very severe and that the injustice in social services and state policy toward people with disabilities does exist" (NRZP, 2004).

Analysis and Application of Czech Law

As evidenced by this case, adults with disabilities and children with disabilities are not being afforded the same amount of care and benefits by the state. This case also involved the right of children with disabilities to live in the community. Families with a disabled member or caretakers go through a daily challenge in a system that favors institutions over families.

From a broad point of view, Article 1 of the Charter of Fundamental Rights and Freedoms (Constitutional Law No. 2 of 1993) which is part of the Constitutional Order of the Czech Republic, reads: "All people are free and equal in their dignity and in their rights." Article 32 (4) and (5) read: "Care of children and their upbringing are the right of their parents.children are entitled to parental upbringing and care." And "Parents who are raising children are entitled to assistance from the state" (The Charter of Fundamental Rights and Freedoms, 1993). With regard to the Skalova case, Article 30 was cited. It reads: (1) "All citizens have a right to adequate support in old-age and when unable to work. (2) Everybody, who is in a material need, has a right to such help that is necessary for ensuring basic living conditions of the person." The advocates from National Council argued that the state failed while providing children with disabilities and their parents with unequal and inadequate help to ensure that they can live together as a family.

There is a clear inequality in distribution of money and power between institutions and families that was also noted during this case. The Social Services Act No. 100 of 1988 guarantees personal assistance for all persons with disabilities, but it excludes minors (individuals under age 18). As a result, parents may not be able to afford these services. The state does heavily subsidize institutions for children with disabilities (Abilympics, 2004). State support for a family that wants to look after its own children with disabilities is approximately 20-times less than state support per child for institutional care (Svetluska, 2004). In 2004, the State support to persons with disabilities was approximately 5 miliard Czech Crowns per yer, but the majority went to big state institutions. One bed in an institution costs the state 93,000 Czech Crowns ($3,720) per year (Abilympics, 2004), or almost 10,000 Czech Crowns ($400) per month. If a family with disabled child receives the same amount of money, they could pay for personal assistance easily. Instead, the monthly benefit for a family with disabled child was 2,552 Czech Crowns ($100) in 2004 under the condition that the person taking care of the child cannot have other income exceeding 3,480 Czech Crowns ($139). The minimum living expenses for a three-member family are estimated at 9,210 Czech Crowns ($368) at the same time, which demonstrates the inadequate funding (Hutar, 2004; NRZP 2004).

In addition to economic inequities, this case addressed several human rights principles, such as equality of opportunity and results, right to live with a family and in a community and to have equal access to services. The court decision justified several ongoing discriminatory practices in Czech society, namely supporting institutional care or unfair distribution of the welfare benefits for people with disabilties to one group over another. Disability discrimination, as it occurs in this case, is evidenced by the discrepancy of the old Social Services Act of 1988 and unequal state support to institutions when compared to home care. Families are denied the Constitutional right to keep their disabled children home, and children with disabilities are denied the right to live with their families and independently.

The new amendened Social Service Act of 2006 that will be effective on January 1, 2007, promises a revolution in Czech disability policies, enabling individuals to shop for services. Thus, Ms. Skalova's son would be able to decide whether he wants to give the money to his mother as a one-to-one attendant, or whether he wants to finance an agency or an institution to provide him with care and assistance. This law, if it had been in place when Ms. Skalova was experiencing difficulties with her son, would have had a major impact on her situation--and on the life of many other people with disabilities.

Analysis and Application of International Law

In this part, I will apply the case of Ms. Skalova to existing international disability laws and I will examine the potential of some international legal documents to interpret the case as a human rights issue.

In the U.S., the Americans with Disabilities Act of 1990 presents one of the most comprehensive disability law in the world; if the case of Ms. Skalova were brought in the US, Title II would give the mother rights to funds to keep her child at home. Medicaid would pay for home care as well as for institutional care, or in some cases, a long-term private insurance would provide funding for disability-related benefits. Much of home care is funded through Medicaid Waiver. Different states in the U.S. have a variety of waivers. For example, in New York State, the Traumatic Brain Injury Waiver, Developmental Disability Waiver, and the Nursing Home Transition and Diversion Waiver to prevent institutionalization are being implemented now (Arise, 2005).

An inequality between institutions and home care does exist in the U.S., too. If a person with a disability is placed in an institution or in a nursing home, the facility receives a certain amount of support from the local or state authorities. However, if the person stays in home care, the family does not get the same amount of money for personal assistance as is provided to the institution for his or her care. The U.S. spends roughly 30 percent of federal Medicaid funds on community services and 70 percent on institutional care (Karpinska, 2005). The current push to allowing persons with disabilities to choose what kind of service they want is embedded in the U.S. Senate S. 971, the MiCASSA (Medicaid Community Attendant Services and Supports Act (bill number S401/HR910) that would shift the federal Medicaid funds into community care. MiCASSA establishes a national program of community-based attendant services and supports for people with disabilities, regardless of age or disability. Another bill now under consideration in the U.S. Senate is Money Follows a Person Act of 2005 SF528 that would allow the dollars to follow the person, and allow eligible individuals, or their representatives, to choose where they would receive services and supports (TASH, 2005).

A different situation would be if a child claims s/he wants to return to his/her family but his/her family cannot afford it. In the U.S., Title II of the ADA concerning public services would then apply to people living in institutions who claim that they are discriminated against by the state's failure to provide them with community services, if the treating professional recommends community placement. Given the U.S. Supreme Court decision in Olmstead v. L.C. (527 U.S. 581 (1999)), persons with disabilities should be able to live in the least restrictive settings and States shall provide community-based treatment for persons with mental disability when professionals deem such placement appropriate (Rothstein, 2002). Kanter and Rosenthal argue that "failing to provide opportunities for people with disabilities to live in the community, rather than in institutions, may violate a broad array of recognized human rights" (Breslin et al., 2002: 342). The majority decision by the U.S. Supreme Court in Olmstead shows that unjustified or involuntary "institutionalization may constitute unlawful discrimination" both under ADA and international law (Id.).

Ms. Skalova would likely not come out any more favorably under other applicable European laws as they stand now. The Czech Republic is subjected to the law of the European Union as well as the Council of Europe. Although the EU has a more complex system of social and disability law, including Article 13 of the Amsterdam Treaty and directives and regulations regarding discrimination and equal treatment of persons with disabilities,2 these are "soft laws" and thus are not legally binding. They also lack efficient enforcement. The new European Convention (2006) that is now being ratified in member states protects people with disabilities from discrimination (Article II-21) and Article II-26 reaffirms the rights of people with disabilities to independent living, social and work integration and participation in the life of community (Degener et al., 2004). If the Convention is ratified, it will be binding for all member states. The new Convention would expand the human rights jurisprudence to include involuntary institutionalization of a person with disability as an example of discrimination at the European level. I believe that building from the principle that institutionalisation equals discrimination would positively influence the result of this case if it were brought to the European Court of Justice in Luxemburg that interprets the EU Treaties.

The Council of Europe operates the European Court of Human Rights based in Strasbourg. The Court enforces the Convention for the Protection of Human Rights (1949) that lists persons with disabilities as a protected group through a state and individual complaint system and thus, is very influential. Ms. Skalova could have brought her case to the Strasbourg court and argued that the Czech Republic violated her right to raise her child by not ensuring equal access to services provided by the state. Given the history of ECHR disability cases' decisions that clearly state that the Court cannot interfere with the state's legislation and laws if they do not violate basic human rights, her chance to succeed would be very limited. Similar to the Czech Constitutional Court, the ECHR could argue that this is a matter of Czech legislature. Yet, if the case is brought as a human rights issue, Ms. Skalova would challenge the Czech microscopic interpretation of human rights principles. Thus, Czech law should be held more responsive to a human rights approach in terms of entitlement of people with disabilities to the same human rights as others.

Disability issues have been more and more often interpreted as a human rights issue under general U.N. human rights instruments, such as the International Convention on Civil and Political Rights or International Convention on Economic, Social and Cultural Rights, although disability has been forgotten as a protected category when drafted (Breslin et al. 2002: 15). The lack of binding instruments lead to current development of a new Convention on Disability. Ms. Skalova could also challenge the Czech law once the UN Convention on Protection and Promotion of Human Rights and Freedoms of Persons with Disabilities is adopted. The Convention will apply to all states that will ratify it. The Convention will be ratified in CR without any hesitation (the country subscribes to all important international treaties, conventions and documents similarily to other small, nonsignificant countries/players in world affairs). The enforcement mechanisms will include committees composed of people with and without disabilities, monitoring and reporting mechanisms, and international cooperation.

The current wording of Article 15 says: "States Parties shall take effective and appropriate measures to enable persons with disability to live independently and be fully included in the community, by ensuring that (.) (b) persons with disabilities are not obliged to live in an institution or in a particular living arrangement" (The Convention on Disability, 2005). Article 16 concerns children with disabilities. It guarantees the same rights and fundamental freedoms as other children enjoy. In particular, Paragraph 4 states that "assistance shall be provided free of charge, whenever possible, taking into account the financial recourses of the parents...and shall be designed to ensure that a child with a disability has effective access to and receives education, training, health-care services.in a manner conducive to the child's achieving the fullest possible social integration and individual development."

Under Article 16, Ms. Skalova might be able to claim that the state failed in providing free and appropriate assistance to her child and her family, and that failure had a serious impact on the child's potential and development. However, given the narrow interpretion of similar laws nowadays, the state would not be most likely made responsible for sufficient funding of personal assistance services. The state cannot be ordered by any international authority to implement immediately a new law that may be more equal and fair. What the state can be hold responsible for would be the discrimination part of her claim based on her right to keep the child out of the institution. The Convention appears to recognize the rights of children with disabilities and their families with respect to independent living, inclusion, equal rights and freedoms and assistance. If these rights are regarded as basic human rights principles, Ms. Skalova could win her claim, broaden the scope of human rights and influence how international treaties are interpreted by international and national courts.

Conclusion

This study has outlined the history and recent development of Czech disability law. In the Czech Republic, the disability rights model has strong grassroots in general statutes, yet the enforcement of the statutes as well as the public awareness of the needs of people with disabilities are underdeveloped. Disability antidiscrimination law is still nonexistent.

The case study of Ms. Skalova and her disabled son offers an example of discrimination against children with disabilities and their families with regard to equal access to personal assistance and services provided and financed by the state. The case also illustrates a disparity between institutional versus home care. Although the Constitutional Court dismissed the claim as going beyond its authority to interfere with legislative power because the court argued that its major role is monitoring compliance with the Constitution that has not been violated, it found the reasons and facts of the case legitimate and very serious. I argue that there is a potential to view involuntary institutionalization as a discrimination based on disability. There is also a potential to expand the case beyond the existing legislature and regard it as a human rights issue as far as we assume that persons with disabilities are entitled to live in communitites not segregated from others and that their need to personal assistance is the way they need to approach their lives.

International treaties and convention also guarantee protection to persons with disabilities. Although international laws play a very important role in the development of national disability policy, domestic legislation and court decisions are essential to implementing the rights at the national/state level. Using the case of Ms. Skalova as an example, it is also clear that recognizing disability as a protected category depends on social and civil enforcement of the law as well as public knowledge of the needs of persons with disabilities. It can be argued that the recent international development in disability law emphasizing disability rights would reverse the outcome of this case if it is viewed as a human rights issue. In this respect, there is an open field for further development in the Czech Republic.

References

  • Abilympics. (2005). Alena Skalova a Postizeni. Retrieved June 1, 2005, from http://www.abilympics.cz/html/abi_zpravodaj/1_2004/S1-stiznost.htm.
  • ARISE. (2005). MiCASSA. Retrieved May 22, 2005, from http://www.ariseint.org.
  • Antidikriminacni zakon. (2006). Retrieved October 30, 2006, from http://www.diskriminace.cz/dt-zakony/antidiskrzakonps.phtml.
  • Breslin, M. L. & Yee, S. (2002). Disability Rights Law and Policy. International and National Perspectives. Transnational Publishers. Ardsley.
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Endnotes

  1. "An impairment is any loss or abnormality of psychological, physiological or anatomical structure or function; a disability is any restriction or lack (resulting from an impairment) of ability to perform an activity in the manner or within the range considered normal for a human being; a handicap is a disadvantage for a given individual, resulting from an impairment or a disability, that prevents the fulfilment of a role that is considered normal (depending on age, sex and social and cultural factors) for that individual." (World Health Organization, International Classification of Impairments, Disabilities, and Handicaps: A manual of classification relating to the consequences of disease [Geneva, 1980]. Retrieved November 2, 2006, from http://www.dpa.org.sg/definition_disability.htm.)
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  2. For example: Directive 2000/78/EC for equal treatment of PERSONS WITH DISABILITIES in employment (full text version at <http://www.europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Directive&an_doc=2000&nu_doc=78>); Resolution of the Council of 31 May 1990 concerning integration of children and young people with disabilities into ordinary systems of education; Resolution of the Council of 20 December 1996 on equality of opportunity for people with disabilities; Council Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, Council resolution of 5 May 2003 on equal opportunities for pupils and students with disabilities in education and training; and Council Resolution on 6 February 2003 "eAccessibility" improving the access of people with disabilities to the electronic knowledge based society. At <http://www.un.org/esa/socdev/enable/comp301.htm#1.2> (28 February 2005).
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