La finalidad de este informe es conocer el impacto del Covid-19, durante el periodo de estado de alarma, en las personas que viven en residencias en Aragón, así como la afectación a profesionales y familiares   Zaragoza, 22/09/20   El interés y preocupación para los derechos de las personas mayores es una constante del actual Justicia de Aragón, como se ha venido mostrando a través de diferentes iniciativas entre las que destaca lo relacionado con situaciones de soledad y estancia en residencias de mayores. Hay que tener presente que este compromiso del Justicia de Aragón, se ve acompañado e impulsado por las continuas quejas de la ciudadanía relacionadas con esta problemática. Este año 2020 estaba previsto centrar una parte del trabajo de esta Institución en las residencias de personas mayores, y para ello se había iniciado un plan de visitas a las mismas, que fue suspendido ante la aparición de contagios, previo al estado de alarma, realizándose la última el día 9 de marzo a la una residencia en la Almunia de Doña Godina, ya con el virus dentro de nuestra sociedad. La pandemia producida por el Covid-19 y la crisis sanitaria consiguiente, ha vuelto a poner de manifiesto la vulnerabilidad de las personas mayores, y de forma especial a quienes están en residencias, como refleja que el 80 % de las personas fallecidas en Aragón lo haya sido en éstas. Por ello, el Justicia de Aragón, acordó abrir un expediente de oficio, para analizar más en profundidad esta problemática, que de forma tan grave está afectando a las personas mayores que viven en residencias; conocer con ello las actuaciones que se están llevando a cabo, por parte de las administraciones públicas competentes en esta materia y recoger las valoraciones que realizan las entidades que gestionan directamente las residencias. Para ello se seleccionaron 98 residencias a las...

During the inspection performed by the Human Rights Division of the Seimas Ombudsmen’s Office, a man with special needs was found illegally imprisoned at Skemai Social Care Home in Rokiškis district, where he spent two weeks behind the bars.

According to V. Valentinavičius, the Head of the Human Rights Division of the Seimas Ombudsmen's Office, the premises had several locks and it was very difficult to get inside: “In order to get to the person, we had to unlock a couple of doors. Upon entering the room, we found three more separate rooms. In one of those rooms there was a door without a handle, three inhabitants behind it and one of them behind the bars.

By the time the police officers arrived at the care home the next morning, the bars had already been dismantled, but the man was lying naked, curled up.

Unlawful deprivation of liberty is prohibited. "All explanations that a person had a mental disability and was aggressive, etc., are unacceptable having in mind that the care home is established for such persons – dependants, who have mental, emotional disorders or mental disability. There are professionals, who should know how to deal with such people. Moreover, there are legal and permissible means how to do it. Neither bars nor insulators, such as those we found, are permissible and possible,” V.Valentinavičius pointed out.

According to the Head of the Human Rights Division of the Seimas Ombudsmen’s Office, even more cases have been identified that can be considered as human rights violations. "We believe that there are significantly more problems; however, all the information will be assessed by the Seimas Ombudsman Augustinas Normantas, who will present conclusions and recommendations on issues concerning securing human rights in Skemai Social Care Home.

In response to the alarming message of the employees of the Seimas Ombudsmen‘s Office on inadequate care of the residents in Skemai Social Care Home, the police launched an investigation into the incident. A pre-trial investigation regarding unlawful deprivation of liberty was initiated  following Article 146 of the Criminal Code. Under this article, a person illigally detaining another person is liable to a fine, arrest or imprisonment for up to three years, and, if circumstances change, even to more severe measures and imprisonment for up to five years.

In response to the situation, the Minister of Social Security and Labor Linas Kukuraitis has temporarily removed Gintaras Girštautas, the director of Skėmai Social Care Home; currently an inspection is being launched against him. Specialists of the Social Services Supervision Department headed to Rokiškis district, where they will assess all the circumstances in the institution.

The Equinet Equality Law Working Group has been working during the last year towards contributing to developing the European Court of Human Rights’ (ECtHR) jurisprudence, including increased analysis of Article 14 of the European Convention on Human Rights (ECHR) and issues that are at the cutting edge of equality law and theory. This blog post presents the results of this work.

About the Equinet Equality Law Working Group

The Equality Law Working Group is in practice Equinet’s permanent platform for legal staff of equality bodies to exchange experience, share expertise and work to improve the level of legal protection from discrimination across the EU. The working group focuses on the interpretation of complex legal problems and a comparative analysis of EU and national legislation and jurisprudence in the field of equality and anti-discrimination law.

The group has historically focused on aspects of EU discrimination law but in 2019 we took a deep dive into Article 14 of the European Convention on Human Rights. The definition of discrimination under Article 14 has evolved since the 1990s and offers a rich area of study. New cases have expanded our understanding of discrimination, the areas of life it touches, the range of characteristics which can be encompassed within “other status” and the parameters of justification. We considered how best to contribute to developing the ECtHR’s jurisprudence, including increased analysis of Article 14 of the European Convention on Human Rights and issues that are at the cutting edge of equality law and theory.

In pursuit of this aim, we worked together to produce two work outputs which we hope will be of interest to lawyers, academics as well as members of NGOs, Equality Bodies and National Human Rights Institutions.

The Compendium

The first output was the recent Equinet publication: Compendium: Article 14 cases from the European Court of Human Rights (“the Compendium”) which offers a detailed analysis of the Court’s recent case law on Article 14.

The Working Group completed a search of the HUDOC database for all cases where Article 14 was argued. This produced 98 results. The Court made a substantive finding in relation to the Article 14 argument in just over a third of those. Central to vindication of the rights of victims of discrimination is public declaration that discrimination has occurred. Overall, there was a violation of Article 14 in 73% of cases where substantive consideration was given to the Article 14 claim. This highlights the importance of giving prominence to an Article 14 argument at the earliest stage.

The Working Group analysed those 37 cases taking a thematic approach. The authors explored themes including: the scope of “other status”, the range of sectors Article 14 can reach, the legal definition of discrimination and associative discrimination applied by the Court, positive obligations, the influence of international instruments and a gender perspective and the approach of the Court to margin of appreciation and justification.

The discussion offers a snapshot of some of the emerging discrimination concerns of the time. Common themes included socio-economic rights of people living and working abroad, positive obligations to combat violence against women, failure to investigate racist motives in allegations of criminal offences perpetrated against Roma people and prisoners’ rights. The Court considered a sexual orientation discrimination case brought by a heterosexual couple for the first time. The Court rejected a claim of discrimination, which argued that a national ban on face coverings discriminated against Muslim women, on the grounds that the discrimination was justified as a proportionate response in pursuit of the aim of promoting ‘living together.’

The implications of, and for this decision, at a time of widespread and often compulsory use of face coverings in response to COVID-19 is discussed in a blog post on the Equinet website.

Communicated cases / third party intervention

The second output was Equinet’s third-party intervention in the case of Toplak and Mrak v Slovenia, a case concerning accessibility of polling stations.

Alongside the research on Article 14 for the Compendium, the legal working group also continually monitored communicated cases from the Court over the course of 2019. The group aimed to contribute to Equinet’s expertise, for the first time, in the form of an intervention in a suitable case. Overall, 134 cases containing an Article 14 claim were communicated by the Court within the period from 1 January 2019 to 17 December 2019.

Some reflections on this experience are included in Chapter 15 of the Compendium. The group closely scrutinised, and ruled out, seven cases. This process highlighted the complexity of the task. Some barriers related to the format and timing of the Communication from the Court. There is a twelve-week time limit in which to seek permission to intervene and sometimes the Communications are not published on HUDOC until several weeks after the communication to the Member State. Sometimes there was limited information about the facts of the case contained within the communication.

Other barriers were internal and arose from the complexity of securing an agreement, or at least ensuring no veto from the Equinet members and the Executive Board within the twelve-week timeframe. It was also essential that the group considered how a submission from Equinet could be of assistance to the Court.

In spite of these obstacles, on the 11^th of March a request to intervene was submitted to the ECtHR, and on 7^th July 2020, the European Court of Human Rights granted permission for Equinet to intervene in the case of Toplak and Mrak v Slovenia. The case concerns the accessibility of polling stations to persons with disabilities in wheelchairs and raises complaints in terms of article 3 of protocol No.1 to the ECHR read alone and in conjunction with article 14, article 1 of protocol No.12 and article 13 as well as under article 1 of protocol No. 12 and article 13 of the Convention.

The relevance of this case was assessed on the basis that this is the first time that the Court will decide on the merits of a case regarding the structural problem of physical accessibility to polling stations regarding persons with disabilities, and the positive duties States have to ensure effective accessibility.  

Equinet’s submission provides the Court with information about international human rights standards and trends regarding the right to vote for persons with disabilities as well as information about legislation, jurisprudence and practice at the national level in contracting states.

The submission emphasises that the right to vote is an essential right and not a privilege. Universal suffrage requires that all citizens have the same opportunities to participate in the political life of the country, as enshrined in international covenants but also in national law. However, in practice, the access of people with disabilities to their rights on an equal basis with those of people without disabilities frequently remains wishful thinking and proves inadequate, which translates into significantly lower participation of disabled people in the electoral process and further marginalises them. This impacts upon the representation of disabled people and undermines democratic legitimacy.

The outcome of the case is awaited and the group will then assess the impact of the submission.

The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.

Further Reading

For more information on the submission process and work of the Equality Law Working Group, read the full article on the website of the Equality and Human Rights Commission in Great Britain: here.

To access Equinet’s third-party intervention to the European Court of Human Rights, please refer to this page.

To access Equinet’s Compendium of Article 14 cases from the European Court of Human Rights, please refer to this page.