A need for more efficient inclusion of persons with disabilities in the decision-making process

A need for more efficient inclusion of persons with disabilities in the decision-making process

The Center for Democracy and Human Rights (CEDEM) is implementing a project entitled “Together for the Inclusion of Persons with Disabilities”, which was financially supported by the Ministry of Justice, Human and Minority Rights. Within this project, a three-day Academy was held on the topic of European Convention on Human Rights and Freedoms: Protection against Discrimination against Persons with Disabilities in the Practice of Montenegrin Justice System and the European Court of Human Rights organized for judicial advisers and the ombudsperson institution. The Academy was held between 26th and 28th of April, 2021, at the Bianca Hotel in Kolašin. The overall goal of the project is to contribute to greater respect for the rights of persons with disabilities and to raise awareness of the professional and layman public about the importance of protection against discrimination against persons with disabilities.

In light of the topic, the first day of the Academy was addressed by Matija Miljanić, Project Coordinator at CEDEM. Miljanić emphasized the importance of respecting the rights of persons with disabilities through the prezentation of Montenegrin involvement in international legal documents, and pointed out that the attitude towards persons with disabilities is a measure of democratic attitude of society towards all marginalized social groups. In addition, Miljanić emphasized that the trend in all indicators simply shows that the position of persons with disabilities is worse than four years ago in every measured aspect. When it comes to government actions, adaptation of school facilities, and presence and treatment of persons with disabilities, the measured values ​​today are at the same level as in 2007. Furthermore, compared to 2007, the assessment of the role and effect of education in the function of persons with disabilities has worsened, followed by the worsening in results of the work of services and institutions that are supposed to improve their needs, and the worsening in terms of discrimination against these persons. Finally, Miljanić stated that the project idea arose as a result of mapped problems, challenges, and shortcomings in this area during the implementation of previous projects in the field of protection from discrimination against persons with disabilities. Miljanić called on the participants to change the society for the better with their engagement and application of new norms, standards and practices, and their constant commitment, so as to contribute to Montenegro having a well-applied legal practice which, in his opinion, is a step towards modern world and European practice.

During the first two sessions, Valentina Pavličić brought the case law of the European Court of Human Rights in the field of protection from discrimination against persons with disabilities closer to the participants, and followed up on the harmonization of Montenegrin legislation with anti-discrimination standards of the EU and Council of Europe (conventions, directives and resolutions). In addition, Pavličić used examples of judgments before the European Court of Human Rights, such as Glor v Switzerland, which is one of the first cases brought before the Court on, inter alia, the issue of discrimination on the grounds of disability (application no. 13444/04, judgment of 30 April 2009). Pavličić pointed out that it was very interesting that in this judgment the Court also mentioned the UN Convention on the Rights of Persons with Disabilities from 2008 and Recommendation 1592 (2003) adopted by the Parliamentary Assembly of the Council of Europe in 2003. According to these international documents, there is a European and world consensus on the need for protection of persons with disabilities against discrimination and their full social inclusion, even though Switzerland is not a signatory party.

During the second day of the academy, Siniša Bjeković introduced the participants to the institution of the Protector of Human Rights and Freedoms of Montenegro, as well as the practice of the Montenegrin judiciary and the institution of the Ombudsperson in protection from discrimination against persons with disabilities. The Protector also reminded of the previously given recommendations in this area, for which there is still a need to engage state institutions in their implementation – to effectively take all necessary measures to ensure accessibility of facilities and areas in public use for people with disabilities and persons with reduced mobility, as well as in providing accessible information, communication, and public transport. In addition, Bjeković analyzed one of the cases before the European Court of Human Rights, Çam v. Turkey (application no. 51500/08), judgment of 23 February 2016. In this case, a violation of the principle of discrimination was established due to the refusal of the Music Academy to enroll a blind student who was awarded amount of 10,000 euros for fair satisfaction and 3,000 euros for the costs of the proceedings.

Dr. Vesna Simović Zvicer, during the second day of the Academy, pointed out the need to include people with disabilities in the decision-making processes which are closely related to their needs – nothing about us without us. In addition, she explained to the participants the impact that terms such as handicapped and handicapped person have on the welfare of these persons, as well as a little bit on the history of use of these terms in international conventions – Social and Medical Model. During the second session, Simović Zvicer spoke about Montenegrin case law and the specificities of our system in the field of protection against discrimination. Working in groups, she discussed with participants in an interactive way examples from Montenegrin legal practice (Judgment of the Supreme Court of Montenegro, Rev 526/2018 of 30.5.2018; Judgments of the Supreme Court of Montenegro, Rev 1039/2018 of 21.11.2018. Judgment of the Supreme Court of Montenegro, Rev 664/2020 of 7.10.2020).

During the third day of the academy, Dina Knežević performed an analysis of the standards of domestic legislation and the practice of domestic courts. In addition, she spoke about the burden of proof, where if a party who is considered injured due to unequal treatment in terms of labor law, before the court or other competent body presents facts from which it can be assumed that there was direct or indirect discrimination, the burden of proof of non-violation of equal treatment passes to the defendant, i.e. legal or natural person against whom the procedure before the competent authority has been initiated. Finally, Knežević spoke about cases in domestic and European legislative, where participants worked in groups to analyze judgments and get acquainted with the practice of domestic and European courts.

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