1. “THE IMPLEMENTATION OF ART. 33 IN EUROPE: SETTING THE SCENE” AVV. DELIA FERRI PH.D IN ITALIAN AND EUROPEAN CONSTITUTIONAL LAW " REALIZATION OF ARTICLE 33 OF THE UN CONVENTION ON THE RIGHTS FOR PEOPLE WITH DISABILITIES" Ljubljana, 12 April 2011

2. “ Principles and Practical approaches” 1. Legal features of Art. 33 UN CRPD 2. Critical evaluation of some experiences of certain Member States, highlighting strengths and weaknesses, explaining why these experiences may prove relevant for other States and what critical issues are being faced. 3. Concluding remarks Provisional_Version_15 March 2011

3. Circulation of successful legal solutions to implement art. 33 UN CRPD….  We need to consider the different constitutional design of each State.  An implementation practice can be deemed a best practice in a State; however the same solution, if transplanted, may not function properly in a different legal context. Provisional_Version_15 March 2011

4. What does Art. 33 UN CRPD require from Parties? Unpacking the content of Art. 33… Schematize and Interpret Provisional_Version_15 March 2011

5. Art. 33(1) FOCAL POINT(S):  Creation of a focal point is compulsory  Focal Point(s): A. Must be at the governmental level (Art. 33(1) UN CRPD) B. Could be one or more (Art. 33(1) UN CRPD) C. Should be at the highest appropriate level, avoiding the traditionally social affairs-related structures (Interpreters) D. Should perform inter alia these tasks (OHCHR)  Promote awareness of the UN CRPD within the staff of the public authority;  Produce a UN CRPD implementation action plan for the relevant public authority;  Establish contact with representative organisations of persons with disabilities and proactively involve them;  Provide technical guidance to fellow staff members on how to fully respect the provisions of the UN CRPD;  Promote specific actions to support the human rights approach, such as research, studies and seminars, involving experts, universities, public agencies and authorities, civil society; Provisional_Version_15 March 2011

6. Art. 33(1) COORDINATION MECHANISM: A. It is not a compulsory mechanism (i.e. Art. 33 provides an option, but not a legal obligation) B. If created, it should be within government (Art. 33) C. It is necessary in case of several focal points D. It should further support implementation of UN CRPD across all sectors and levels of government. There is no clear distinction between the functions of the focal point and the coordination mechanism Provisional_Version_15 March 2011

7. Art. 33(2) FRAMEWORK A. It is a compulsory structure (Art. 33(2)) B. It must include “one or more independent mechanisms” (Art. 33(2)) C. It should perform inter alia these tasks (Interpreters): ▫ Promote the implementation of the Convention, i.e provide information, carry out awareness raising activities, educational activities, promote implementation methods and tools available to national government; inform persons with disabilities about their rights ▫ Monitor the implementation, thus assess the extent to which there has been implementation; ▫ Carry out the task of protection, i.e. assist in protection, without being solely responsible for it, provide a complaints mechanism; provide mediation; establish programmes of prevention; undertake ‘strategic litigation’ Provisional_Version_15 March 2011

8. Art. 33 (3):  Requires that civil society organisations form part of the national framework under Article 33(2) UN CRPD  Civil society should be also fully involved within the governmental sphere (i.e in the focal point/s) Provisional_Version_15 March 2011

9. II. How Has Art. 33 Been Implemented in the Member States? Provisional_Version_15 March 2011

10. Focal Point The designated structures relating the implementation of the Convention is the Ministry of Welfare/Labour/Social affairs (according to each different national denomination), or an internal structure of the Ministry itself Strengths and Opportunities of this Model Criticism and Challenges These Ministries have proven competent to deal with disability, since they traditionally are in charge of disability related matters The choice of these Ministries does not automatically neglect the conception of disability as human right issue Continuing of the charity approach [medical model] Provisional_Version_15 March 2011

11. Single Focal Point vs Several Focal Points Provisional_Version_15 March 2011

12. Single Focal Point e.g. Austria, Denmark, Spain Strengths and Opportunities of this Model Challenges - A single focal point guarantees efficiency, specialization, and no duplication of functions. - It is easy to identify the institution responsible for the implementation (more accountability) - A single focal point is “less expensive” for the State and makes it possible to devote resources to effective and substantive implementation - Subnational entities are not directly involved in the implementation of the Convention -Lack of subsidiarity -Lack of mainstreaming Provisional_Version_15 March 2011

13. Several Focal Points e.g. France, Belgium Strengths and Opportunities of this Model Challenges UNITARY STATES:  Implementation of the UN CRPD is shared among different administration and mainstreamed in every policy action FEDERAL/REGIONAL STATES  Levels nearer to citizens impacted by public choices are fully involved (respect for subsidiarity)  Focal points across and within the different governmental layers will not necessarily have the same role but can differently contribute to the implementation of the UN CRPD  The proliferation of focal points may endanger the efficiency of the implementation mechanism. Provisional_Version_15 March 2011

14. Where there is a plurality of focal points, the coordination mechanism is necessary…  …In many cases the focal point designated within a Ministry incorporates at the same time a coordinating function E.g. Belgium  …In some cases civil society has been involved in the coordination mechanism E.g. Denmark, Austria Provisional_Version_15 March 2011

15. Best Practices? Bodies which include civil society seem to be a “best practice” because...  Respect horizontal subsidiarity (involving stakeholders and civil society)  Create a link among all the actors involved in the implementation process Provisional_Version_15 March 2011

16. Framework  The Convention leaves the door open:  to the creation of a new ad hoc framework which includes a new independent mechanism and other new bodies  to the designation as ‘framework’ of a single existing independent mechanism  and/or to the sharing of tasks among different (existing and new) entities Provisional_Version_15 March 2011

17. DESIGNATION AS ‘FRAMEWORK’ OF A SINGLE EXISTING INDEPENDENT MECHANISM… e.g. NHRI  E.G. GERMANY  The German Institute can easily carry out the tasks of promotion and monitoring envisaged by Art. 33(2). However, it is not given the mandate to handle complaints or provide legal advice, and requests in individual cases cannot be dealt with. Other examples: UK, SPAIN… Provisional_Version_15 March 2011

18. DESIGNATION OF AN AD HOC COMMITTEE: THE CASE OF AUSTRIA Strengths and Opportunities of this Model Criticism -Challenges  Pluralism is ensured  There is involvement of civil society  The committee is not subject to any ministry directives.  Promotion and monitoring are carried out  Protection is also ensured  There is a lack of independence due to its organisational placement with the Federal Ministry of Labour, Social Affairs and Consumer Protection  Financial independence is not ensured Provisional_Version_15 March 2011

19. CREATION OF A NEW AD HOC “BODY”: THE CASE OF ITALY  Italy envisaged the creation of a new mixed “body”as framewok: National Observatory on the Conditions of Persons with Disability (NOCPD art. 3 L. 18/2009)  NOCPD is created and ruled by Min. Decree 30 Nov. 2010  It has a mixed composition and has a Scientific Committee which should represent the Independent Mechanism StrengthsCriticism  Pluralism is ensured  There is involvement of civil society  The Scientific Committee is not formally subject to any ministry directives.  There is a lack of independence due to its organisational placement with the Ministry of Labour and Social Affairs and to the fact that financed by the Ministry itself  Also Scientific Committee includes functionaires of the Ministry  Protection is not ensured Provisional_Version_15 March 2011

20. DESIGNATION OF A SINGLE EXISTING INDEPENDENT MECHANISM: THE OMBUDSMAN (e.g. Latvia) Strengths and Opportunities of this Model Criticism -Challenges  Independence is ensured.  Protection is partially ensured (since the Ombudsman may represent the rights and interests of a private individual in an administrative court)  There is no involvement of civil society  Protection is not fully ensured. Thus, the requirements of Art. 33 are not fully respected  It is not really clear how promotion and monitoring are carried out Provisional_Version_15 March 2011

21. Involvement of civil society  In the focal point/coordination mechanism  e.g. Austria, Denmark, Italy  In the independent mechanism and within the monitoring process  e. g. Spain  Through different tools such as public meetings, participatory fora, consultations  e.g. Austria Provisional_Version_15 March 2011

22. Concluding Remarks Provisional_Version_15 March 2011

23. Art. 33 makes a clear divide between institutions having responsibility for ‘implementation’ and framework…  ….but, the Focal points, Coordination mechanism and Framework must be interrelated, and they must interact… Provisional_Version_15 March 2011

24. Implementation of the UN CRPD in Europe The implementation of the UN CRPD in Europe should be understood as an ongoing process, one in which EU or national government structures, courts and civil society all have a role to play.

25. THANK YOU FOR YOUR ATTENTION Provisional_Version_15 March 2011