Ministers’ Deputies
Notes on the Agenda

CM/Notes/1054/4.1 18 March 20091
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1054 Meeting, 15 April 2009
4 Human Rights


4.1 European Social Charter –

Collective complaint No. 41/2007 by the Mental Disability Advocacy Center (MDAC) against Bulgaria

Reference documents
Report from the European Committee of Social Rights to the Committee of Ministers
(Secret document distributed by the Chair of the Deputies)
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Action

To examine the follow-up to the report of the European Committee of Social Rights in Collective Complaint No. 41/2007 MDAC against Bulgaria.

1. In application of Article 7 of the Protocol providing for a system of collective complaints, the European Committee of Social Rights transmitted to the Committee of Ministers on 10 June 2008 its report on complaint No. 41/2007 by the Mental Disability Advocacy Center (MDAC) v. Bulgaria, containing its decision on the merits of the complaint.

2. By letter dated 16 June 2008, the Chair of the Deputies transmitted the report of the European Committee of Social Rights to the representatives of the Contracting Parties to the Charter and the Revised Charter.

3. The Appendix to these Notes contains information on the collective complaints procedure.

4. The complainant organisation, the Mental Disability Advocacy Center (MDAC), is an international non-governmental organisation

5. The complainant organisation alleged a violation of Article 17§2 alone and taken in conjunction with Article E of the Revised Charter on the ground that Bulgaria did not ensure an effective right to education to children with moderate, severe or profound intellectual disabilities residing in homes for mentally disabled children (HMDCs) and that these children face discrimination as a result of the low number of such children receiving any type of education when compared to other children.

6. In its decision, the European Committee of Social Rights concluded:

(i) unanimously that there is a violation of Article 17§2 of the Revised Charter because children with moderate, severe or profound intellectual disabilities residing in HMDCs do not have an effective right to education

Only 2.8% of the children with intellectual disabilities residing in HMDCs are integrated in mainstream primary schools, which is extremely low considering that integration should be the norm. Mainstream educational institutions and curricula are not accessible in practice to these children. In addition, teachers have not been trained sufficiently to teach intellectually disabled children and teaching materials are inadequate in mainstream schools. These schools are therefore not suited to meet the needs of children with intellectual disabilities and hence to provide their education.

Only 3.4% of children with intellectual disabilities residing in HMDCs attend the special classes set up for them. Despite the fact that special classes should not be the norm but only an exception to mainstream education, the figure is very low and demonstrates that special education is not accessible to children with intellectual disabilities residing in HMDCs.

Finally, as to the activities that intellectually disabled children follow within the HMDCs, the HMDCs are not themselves to be regarded as educational institutions; consequently, the children are ineligible for a diploma attesting completion of primary school education and they are therefore prevented from entering secondary education. In addition, in practice, the children do not receive any education in the HMDCs. The activities pursued by intellectually disabled children living in HMDCs who attend neither a mainstream school nor a special class cannot be considered to be a form of education.

Any progress that has been made in Bulgaria in the field of education of children with moderate, severe or profound intellectual disabilities residing in HMDCs has been very slow and has consisted mainly of the adoption of legislation and policies (such as action plans) but little progress has been made in their implementation.

(ii) by 12 votes to 1 that there is a violation of Article 17§2 of the Revised Charter taken in conjunction with Article E because there is discrimination against children with moderate, severe or profound intellectual disabilities residing in HMDCs as a result of the low number of such children receiving any type of education when compared to other children

Only 6.2% of the intellectually disabled children living in HMDCs are educated in mainstream primary schools or in special schools. For the period 1997-2000, primary school attendance rates for the whole children population in Bulgaria were 93% for girls and 95% for boys. The disparity between these figures is so great that it demonstrates that there is discrimination against children with intellectual disabilities residing in HMDCs in comparison with all other children with regard to access to education in Bulgaria.

7. It is recalled that in previous collective complaints where the European Committee of Social Rights found the situation not to be in conformity with the Charter, the Committee of Ministers has either adopted a recommendation to the state against which the complaint was lodged or adopted a resolution. The latter has usually been the case where the state concerned made a commitment to take specific measures to bring the situation into conformity with the Charter.

8. Accordingly, the Committee of Ministers could ask the Bulgarian Delegation to indicate what measures the Bulgarian authorities intend to take in order to bring the situation into conformity. On the basis of this information, the Committee of Ministers would then decide when and how they should consider the follow-up to this complaint.

Financing assured: YES

DRAFT DECISION

1054th meeting – 15 April 2009

Item 4.1

European Social Charter –
Collective complaint No. 41/2007 by the Mental Disability Advocacy Center (MDAC) against Bulgaria
(Report from the European Committee of Social Rights to the Committee of Ministers)

Decision

The Deputies instructed the Secretariat to prepare a draft text to be considered at one of their forthcoming meetings.

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Appendix

States participating in the procedure

1. Under the terms of the Protocol, only those states having ratified the European Social Charter are qualified to participate in this procedure. In the circumstances, the term “Social Charter” should be interpreted as the 1961 Charter and the 1996 Revised Charter. The following States would therefore be concerned (as of 1 March 2009): Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Norway, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom.

Procedure

2. According to Article 9 of the Protocol:

    “1. On the basis of the report of the [European Committee of Social Rights], the Committee of Ministers shall adopt a resolution by a majority of those voting. If the [European Committee of Social Rights] finds that the Charter has not been applied in a satisfactory manner, the Committee of Ministers shall adopt, by a majority of two-thirds of those voting, a recommendation addressed to the Contracting Party concerned. In both cases, entitlement to voting shall be limited to the Contracting Parties to the Charter.

    2. At the request of the Contracting Party concerned, the Committee of Ministers may decide, where the report of the [European Committee of Social Rights] raises new issues, by a two-thirds majority of the Contracting Parties to the Charter, to consult the Governmental Committee”.

3. It follows from this provision that the collective complaints procedure ends by the adoption of a resolution.

4. However, in the case where non-satisfactory application of the Charter has been found, the Committee of Ministers may adopt a recommendation by a majority of two-thirds of those voting. The aim is to recommend to the state concerned the measures to be taken with a view to bringing the situation into conformity with the Charter.

5. In accordance with Article 10 of the Protocol, the European Committee of Social Rights shall examine the situation again within the framework of the reporting system. The Contracting Parties shall, in their next reports, provide information on the measures taken to give effect to the Committee of Ministers’ recommendation.

Note 1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.


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