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Committee on the Rights of Persons with Disabilities examines the report of El Salvador

Committee on the Rights of Persons
  with Disabilities 

12 September 2019

Experts Raise Concerns about the Deprivation of Legal Capacity and Violence against Women and Children with Disabilities, including Gang Violence

The Committee on the Rights of Persons with Disabilities today concluded its consideration of the combined second and third periodic report of El Salvador on measures taken to implement the Convention on the Rights of Persons with Disabilities.

Amalia Gamio, Committee Rapporteur, opening the interactive dialogue with the delegation of El Salvador, remarked that among the most important issues facing the country were the longstanding discrimination against persons with disabilities, the barriers and the medicalized conception of disability, and the exclusion of persons with disabilities from accessing justice and education.

The Committee was concerned about poverty and the very high rate of illiteracy of persons with disabilities, which stood at 35 per cent, gang violence and insecurity, and the denial or limitation of legal capacity which echoed through all spheres of life: in the right to marry, in the right to vote, in the right to be adopted or to foster a child, in the right to consent to medical procedures, and in the right to freedom and liberty.

The President of the National Council for Persons with Disabilities of El Salvador, Claudia Patricia Zaldivar Moran, introducing El Salvador’s report, noted that the new Government had been in place since June 2019.  In a show of the commitment to the inclusion of persons with disabilities, the new President had taken his oath of office in sign language, Ms. Zaldivar Moran said.

The Government of El Salvador had set for itself the goal to tackle the challenge of harmonizing the country’s laws with the provisions of the Convention on the Rights of Persons with Disabilities, while the draft law on the inclusion of persons with disabilities was before the National Assembly.  National policies on the protection of children, on inclusive education, on employment and on tourism contained provisions for persons with disabilities and fit into the overall policy for persons with disabilities of the new Government, she stressed.

El Salvador recognized that education was a fundamental pillar for the country’s development and that, historically, persons with disabilities were at a disadvantage in accessing education.  More than 2,000 persons with hearing, intellectual, motor and visual disabilities had participated in the national literacy programme, through which they had learned Braille or the El Salvadorian sign language.

Concluding the dialogue with the delegation of El Salvador, Ms. Gamio, Committee Rapporteur, highlighted the need to adopt the law on the inclusion of persons with disabilities, to strengthen the prohibition of discrimination, and to ensure the greater participation of persons with disabilities in matters that concerned them. 

Ms. Zaldivar Moran stressed, in her concluding remarks, that the full incorporation of the Convention was a goal that El Salvador must attain, in practice, for all the society. 
The delegation of El Salvador was composed of the representatives of the Ministry of Foreign Affairs, the National Council for Persons with Disabilities, and the Permanent Mission of El Salvador to the United Nations Office at Geneva.

All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage .  The webcast of the Committee’s public meetings will be available via the following link: http://webtv.un.org/meetings-events/ .

The Committee will next meet in public at 3 p.m.  this afternoon to consider the combined second and third periodic report of Australia (CRPD/C/AUS/2-3 ).

Report

The Committee has before it the combined second and third periodic report of El Salvador (CRPD/C/SLV/2-3 ).

Presentation of the Report

CLAUDIA PATRICIA ZALDIVAR MORAN, President of the National Council for Persons with Disabilities of El Salvador, introducing the report, said that El Salvador’s new Government had been in place since June 2019.  The new President had taken his oath of office in sign language, which showed the new Government’s attachment to the inclusion of persons with disabilities.

The new Government had set for itself the goal of tackling the challenge of harmonizing the country’s laws with the provisions of the Convention on the Rights of Persons with Disabilities, for which technical and other forms of assistance and cooperation would be needed.  Laws that required amendments and harmonization with the Convention included the law for the protection of persons injured in the armed conflict and the law on equal opportunities for persons with disabilities, both of which had been enacted prior to the entry into force of the Convention in El Salvador.  A law on the inclusion of persons with disabilities had been proposed to the legislative body which would, inter alia, improve the management of the national disability body, the National Council for Persons with Disabilities.

The first national survey of persons with disabilities had allowed for taking stock of their situation, while the national policy for the comprehensive care of persons with disabilities had been approved in 2014.  National policies on the protection of children, on inclusive education, on employment and on tourism contained provisions for persons with disabilities and fit into the overall policy for persons with disabilities of the new Government.

The threat of climate and seismic disasters, coupled with underlying vulnerabilities of the population, meant that the risks, especially for persons with disabilities, were rather high.  In 2017, in partnership with organizations such as the United Nations Children’s Fund, El Salvador had developed standards for the inclusion of, and protection and assistance to persons with disabilities in situations of risk and emergencies.  In 2018, the national mental health policy had been adopted but its implementation was affected by the lack of adequate resources, including for the community-based rehabilitation.

El Salvador recognized that education was a fundamental pillar for the country’s development and that, historically, persons with disabilities were at a disadvantage in accessing education.  More than 2,000 persons with hearing, intellectual, motor and visual disabilities had participated in the national literacy programme, through which they had learned Braille or the El Salvadorian sign language.

Questions from the Experts

Opening the interactive dialogue with the delegation of El Salvador, AMALIA GAMIO, Committee Rapporteur for El Salvador, remarked that among the most important issues facing the country that would be discussed today and tomorrow were the longstanding discrimination against persons with disabilities, the barriers and the medicalized conception of disability, and the exclusion of persons with disabilities from accessing justice and education.
The Committee was concerned about poverty and the very high rate of illiteracy of persons with disabilities, which stood at 35 per cent: gang violence and insecurity; and scant progress in the areas of employment and education, remarked the Rapporteur.

What measures had been taken to remove all derogatory terms from the laws and align them with the Convention?

Nominally, the Office of the Human Rights Advocate was mandated with cooperating with representative organizations of persons with disabilities, but what happened in reality was that the organizations were convoked and shown plans and projects rather than being genuinely involved and consulted. 

Welcoming the adoption of the law on a life free from violence for women, the Rapporteur asked whether it contained specific provisions on women and girls with disabilities, especially those with intellectual and psychosocial disabilities.

Accessibility, other Experts stressed, was a backbone of the Convention – without accessibility to services, transport, buildings and other services, the effective inclusion and participation of persons with disabilities in the society would not be possible.  They asked about the concrete role of the Government in the process of drafting accessibility standards, their monitoring, and sanctions for violators.  What benefits and results for persons with disabilities arose from the legislation and public works, both in the private and public sectors and in rural and urban areas?  Was there a budget allocated for reasonable accommodation in the workplace?

DANLAMI UMARU BASHARU, Committee Chairperson, remarked that of the 7,341 children and teenagers who had participated in the design of the national policy for the protection of children and teenagers, only 21 were children and adolescents with disabilities, which was hardly representative.  How was el Salvador ensuring that children with disabilities had a clear voice and were included in the formulation of policies and programmes?  Was the Telethon still enabled to raise funds using a charitable model of disability?

ROSEMARY KAYESS, Committee Vice-Chair, raised concern about the opacity of national laws and policies when it came to women with disabilities and the fact that the barriers they experienced in accessing preventative health care increased their morbidity and mortality due to preventable causes. 

Echoing the comments made by the Committee on the Rights of the Child during their review of El Salvador, Ms. Kayess expressed grave concern about the high level of impunity for crimes committed against children by gangs, the increasing sexual violence against girls, and the resulting high rates of teenage pregnancy.  How did such a high level of violence affect children with disabilities, girls in particular, and what was being done to effectively protect all children from violence, including sexual violence?  What specific steps were being taken to protect girls with disabilities from all forms of violence?

Responses by the Delegation

On violence against children, the delegation said that El Salvador had a law on the protection of children and adolescents and a functioning National Council for Children and Adolescents.  El Salvador was aware of the many challenges that still remained in ensuring their equal enjoyment of rights. 

The country was currently consolidating inclusive education; a draft law on the matter was in the National Assembly at the moment.  The law would bring down the barriers and increase the educational programmes offered for children with disabilities to ensure that they could fulfil their potential.  There were 36,400 children with disabilities aged up to 12 years of age.

The law on the right to life for women had made a real difference in protecting all women, including those with disabilities, from violence.  All women were equal before the law and there was no discrimination on the grounds of race, religion, language, sexual orientation and gender identity, or any other ground.

The delegation emphasized the challenges of violence meted out by the gangs, maras, and the resulting forced internal displacement of people.  The Government was considering the adoption of the law on the protection of victims, which represented tangible progress.

The National Council for Persons with Disabilities was working with agencies and institutions across the Government to raise awareness about disability issues and so create a multiplier effect that would eventually eliminate the stigma attached to persons with disabilities.  The bill on the inclusion of persons with disabilities, drafted with the participation of civil society organizations, was still being discussed in the National Assembly.

As far as the Telethon was concerned, as long as it operated within the boundaries of the law, it was not possible to prevent it from fundraising.  On access to public information, the delegation said that public information was available in Braille, easy read, and with subtitles.  The National Council for Persons with Disabilities was working with a number of ministries to include the consideration of accessibility in their plans and programmes, as well as with the national police to break down the barriers and enable persons with disabilities to lodge complaints.

Questions from the Experts

In the next round of questions, the Committee Experts raised concerns about the continued deprivation of persons with disabilities from their legal capacity and asked for how long a person with disabilities could have his or her legal capacity taken away and whether there was a regular review process. 

Experts also voiced concerns about forced hospitalization and involuntary internment, forced sterilization, and non-consensual treatments such as electroshocks, which were in serious violation of the provisions of the Convention.  What measures were in place to prevent that persons with intellectual or psychosocial disabilities who committed a crime were indefinitely deprived of their liberty?

What progress was being made in ensuring that all persons with disabilities - especially those who were still placed in residential institutions – could enjoy their right to independent living in the community?  Strongly encouraging El Salvador to close residential institutions, both public and private, the Experts asked about the number of children and adolescents with disabilities and the number of persons with intellectual disabilities in institutions, deinstitutionalization plans and strategies, and the progress made in enabling them to live in the community, with those they loved. 

The delegation was asked whether there were alternative means of communication in health facilities that would enable persons with disabilities to communicate with their health service providers. 

AMALIA GAMIO, Committee Rapporteur for El Salvador, expressed serious concern that more than 45,000 persons with disabilities in the country did not have birth certificates and asked about steps to remedy this situation.

Were there any programmes to protect persons with disabilities from human trafficking and organ trafficking, and what system was in place to support and assist the victims?

Responses by the Delegation

The delegation explained that the National Council for Persons with Disabilities was composed of seven representatives from civil society organizations representing persons with disabilities with various categories of disabilities.  Another seven representatives came from various ministries – labour, health, education, finance, and others.  This parity in representation was intentional - it was contained in the statute and it aimed to give a voice to persons with disabilities.

The National Council for the Protection of Children and Adolescents regulated programmes for children with disabilities, such as residential programmes as well as early development initiatives.  When it came to children with disabilities, there was cooperation between this body and the National Council for Persons with Disabilities, as well as civil society organizations.

There were various forms of funding to facilitate access to public information, and the law itself was available in Braille, easy read, and animated version with captioning.

The national policy for cancer prevention and control contained a human rights-based approach and aimed to reduce the burden of disease and increase the quality of life.  Between June 2017 and May 2018, a total of 48 courses had been provided to 952 emergency medical professionals on emergency care of persons with disabilities.

The staff in the Office of the Prosecutor were trained in sign language which strengthened the access to justice for persons with disabilities.  Sign language interpreters were also available in court hearings but not in detention facilities.  Forced hospitalization and forced treatment was a challenge, the delegation acknowledged, and agreed that laws and practices that allowed forced institutionalization had to be reformed.  Sterilization procedures could only be undertaken with the free and informed consent of the person concerned.  There had been no reports of attempts at forced sterilization. 

As for the right to a life free from violence for women, El Salvador had adopted the law on the matter and had set up in 2012 a specialized technical committee that triggered actions in response to violence against women, including sexual violence.  A 24 hotline was available and there were 87 specialized response units.  In an effort to put in place a differentiated approach to women and girls with disabilities, efforts were being deployed to train the staff involved in the response and to raise their awareness about their specific needs.  

The Criminal Code was being reformed to strengthen the prohibition and sanctions for trafficking in persons, a law on human trafficking had been adopted, and El Salvador was a signatory to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.

A number of centres were in place to support persons with disabilities in realizing their right to independent and autonomous living, while other institutions supported their inclusion in the workplace.  The Living in the Family Programme was based on two pillars, the first targeted children living in residential care and strove to move them into foster families, while the second one focused on the emergency foster and institutional care for children.

As far as deprivation of persons with disabilities of their legal capacity was concerned, the delegation said that addressing this issue and restoring full legal capacity required a legislative reform of article 47.2 of the Constitution, which then had to be approved by the National Assembly.  Another option was to invoke article 144 of the Constitution which recognized that international treaties were a part of the national legal framework.  The draft law on the inclusion of persons with disabilities proposed a reform of article 147 of the Civil Code on legal capacity; this bill was currently before the legislature.

Since 2015, the National Council for Persons with Disabilities, in cooperation with national and international partners, had worked on the development of measures to ensure the protection of persons with disabilities in emergency situations.  A roadmap and a proposal for a strategic plan from 2020 had been produced and institutional coordinating platforms had been set up.  The Civil Protection Service was working on increasing the accessibility of emergency shelters, while all schools, under the guidance of the Ministry of Education, were developing their own evacuation plans, which required that each child with disabilities was identified and provided for in the plan.

The Constitution recognized a human being from the moment of conception and abortion, in any form, for any woman, and under any circumstances, was not permitted and was punishable under the Criminal Code.  Abortion was not allowed even in cases of sexual violence or if the pregnancy threatened the life of the mother. 

Questions from the Experts

In the final round of questions, the Experts inquired about the outcomes of the employment strategy for persons with disabilities.  An Expert remarked that a sanction of $27 for employers who failed to comply with the accessibility requirements and to remove barriers was insufficient.

On home and family, the Experts urged El Salvador to eliminate discrimination from the legal provisions regulating adoption and fostering, which currently stated that an adoptee had to have legal capacity and that a person with visual disabilities could not be a foster parent.  More efforts were needed to repeal or amend legislation that was not in line with the Convention, they said.

What efforts had been made to respond to the rehabilitation and reintegration needs of migrants with disabilities?

Turning to the national social protection system, the Experts asked how it took into account disability issues and what provisions were there for elderly persons with disabilities.  Were sign language and Braille legally recognized as languages of communication in the justice system?  Was it possible for a person with disabilities whose legal capacity was removed to vote or to run for public office?

An Expert stressed that under the Convention, sterilization consented to by the guardian and not by a person with disabilities him or herself, amounted to forced sterilization.  What was El Salvador doing to put in place supported decision-making and enable persons with disabilities to give their free and informed personal consent to medical procedures. 

AMALIA GAMIO, Committee Rapporteur for El Salvador, commended the One Child One Computer programme and asked how many children with disabilities had benefited from it.

Responses by the Delegation

Responding to the questions and comments, the delegation said that the provisions on legal capacity violated the rights of persons with disabilities, which meant that civil society organizations must work for the legal and constitutional reform that would improve the situation of persons with disabilities in many areas of life. 

The $27 fine for the violation of accessibility codes by employers was indeed small and in today’s context did not make much sense, the delegate said.  The implementation of the law on the inclusion of persons with disabilities would improve their participation in the labour markets.  There were job placement schemes that enabled persons with disabilities to secure interviews and they could also access entrepreneurship capacity-building activities.  Training activates took place in workplaces to raise awareness and prevent discrimination against persons with disabilities.  The Labour Code prescribed that persons with disabilities should represent 25 per cent of the workforce.

The Salvadorian Institute for Comprehensive Occupational Rehabilitation had been set up in 1990 to strengthen the labour integration of persons with disabilities who had completed their primary education.  It offered various workshops such as baking, carpentry, cosmetics, cooking, and other courses.  Major changes had been introduced in 2011 and the Institute now offered evaluation and vocational orientation, vocational and occupational training, and the certification of capacity, all with the view to support persons with disabilities in finding gainful and dignified employment.

The Constitution guaranteed the right to vote to all individuals who enjoyed full legal capacity.  This needed a revision.  Also to be revised were provisions of the Family Code which discriminated against persons with disabilities in the right to contract matrimony and which excluded all those who due to their disability were not able to give their unequivocal consent to the union.

Public services under the umbrella “El Salvador est tu casa” were available to returning migrants, including those with disabilities.  Those included entrepreneurial and managerial training, a new opportunities programme, a certification and reintegration programme, financial services programmes, and specific programmes for young returnees.  Every returnee could access a face to face interview with a specialized staff during which specific individual needs and programmes of support were discussed.

El Salvador was a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; it had passed a law on the protection of the rights of migrant workers and had set up the National Council for the Protection and Development of Migrant Workers and Their Families.

More remained to be done to address the complex challenge of mass migration that had been affecting since 2018 not only El Salvador but other countries in the region such as Guatemala, including on preventing migratory flows by offering alternatives to migration.

The 2014 law on social protection had laid the foundation for a social protection system which included those who until then had been excluded.  The basic universal pension in rural and urban areas provided benefits to 1,700 persons with disabilities in rural areas and 471 in urban areas, while recently, a universal pension for dependent persons with disabilities had been launched.  

Concluding Remarks

CLAUDIA PATRICIA ZALDIVAR MORAN, President of the National Council for Persons with Disabilities of El Salvador, in her concluding remarks, reiterated El Salvador’s commitment to continue to address the remaining challenges and to strive to improve their quality of life and full inclusion in the society.  The full incorporation of the Convention on the Rights of Persons with Disabilities was a goal that El Salvador must attain, in practice, for all the society. 

AMALIA GAMIO, Committee Rapporteur for El Salvador, concluded by thanking the delegation for its honesty in the dialogue and the recognition of the many challenges that still remained.  The Rapporteur highlighted the need to adopt the law on the inclusion of persons with disabilities, to strengthen the prohibition of discrimination, and to ensure the greater participation of persons with disabilities in matters that concerned them.  She also called for more precise responses to the identified challenges, in the form of concrete actions, tools and timelines. 

JONAS RUSKUS, Committee Vice-Chair, in his concluding remarks hoped that the very productive dialogue would serve, alongside the Committee’s concluding observations, to facilitate a more comprehensive implementation of the Convention in El Salvador.

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