Transcript The Situation in Cyprus Concerning the Protection and Promotion of

The Situation in Cyprus Concerning
the Protection and Promotion of the
Rights of Persons with Intellectual
Disabilities.
Constantinos Efrem, Cyprus
Parallel Session 1.2, 12 May 2011
Contents
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Introduction
Legal situation – general – special laws
The Law Concerning the protection of the Rights of
persons with a mental handicap – Νο 117/89
The obligations of the State concerning the rights of
people with intellectual disabilities
The role of the Committee for the Protection of the
Rights of persons with a mental handicap
Compatibility of the Law No 117/89
Suggestions for incorporating provisions of the
Convention into national legislation
Other Corrective measures
Introduction
Personally, I believe that for the time being their will be no other impact than
“great” expectations for all of us who are directly or indirectly involved in the
overall effort to assist persons with intellectual disabilities for inclusion in the
Society.
Yes, we agree that the Convention is an innovative instrument, it restores
human rights for the persons with intellectual disabilities, treating them as
human subjects and not as objects, with respect, dignity and equal treatment
etc.
But let us not forget that similar UN instruments of the past, for instance the
Convention in the Rights of the Children is far from being adhered to by most
countries which ratified it.
On the other hand a proper implementation of the Convention by a State
requires the introduction of new structures, services and other expensive
actions, and this in the middle of world economic crisis.
In spite all that, we have to be optimistic and see that in each country all
parties concerned, the state, the persons with disabilities, their families and
the organizations, as well as other social partners, work together to widen
the horizons for the persons with intellectual disabilities for inclusion and
better life, by amending/ introducing legislation, creating structures, policies
and strategies and reforming social attitudes.
Legislation concerning equality
General Legislation
The Constitution of the Republic of Cyprus safeguards the general principle
for equality for all citizens of fundamental human rights. Article 28 of the
Constitution safeguards equality without any exemption and Article 9
safeguards the right for a dignified living.
Specialized Legislation
The Law concerning the protection of the rights of persons with a mental
handicap No. 117/89, which lays down the obligations of the State and
provides for the establishment of the Committee and a Fund for the
promotion of their rights.
Law No. 23/I/96 concerning the property receivers of incapacitated persons
The Law No. 113/I/99 (Revised) Concerning Education of Children with
Special Needs. Main principle of the law is the inclusion of children in
mainstream education and exceptionally in special schools.
Law No. 127/I/2000 concerning Persons with Disabilities which defines the
basic rights of persons with disabilities and equal treatment.
Law No. 146/I/2009, concerning the introduction of a quota system
concerning engagement of persons with disabilities in the wider Public
sector (10% of the existing vacant posts).
Law 117/89
Title: Law concerning the Rights of Persons with a Mental Handicap,
definition of the obligations of the State towards them and the
establishment of a Committee and Fund for their promotion
The Law provides inter alia:
The person with a mental handicap is entitled to dignified living and social
security
It is the obligation of the State for the safeguarding of those rights as well
as of the provision of the necessary means for their realization in practice
providing or contributing according to his/ hers needs, in the field of:
 Special education
 Institutional residence and daily care (including medical)
 Creation of employment opportunities
 Care at home
 Legal protection in the social environment
 Assistance for inclusion
 Appointment of suitable persons for property administration
The State undertakes its obligations as a matter of priority within its
capabilities etc.
The Committee for the Protection of the
Rights of Persons with a Mental Handicap
(Article 5(1) of the Law).
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The Committee consists of 10 members, 5 of which are Government
Officers and 5 member of the Parents Association and are appointed by
the Minister of Labour and Social Insurance. The Committee is chaired by
a Government Officer.
The Committee has the following Terms of Reference:
 To register all persons with a mental handicap
 To monitor, follow up and examine problems related to people with a
mental handicap
 The follow up of action and measures taken in the field
 The follow up of the implementation of the Law
 The establishment of a list of persons for appointment as trustees,
guardians or property receivers
 The establishment of a register of relevant services and institution
 The inspection of the places where people with a mental handicap live,
work/ occupied and submit relevant reports
 Provision of advice and guidance to people with mental handicap, their
parents, guardians etc.
 Make arrangements for suitable employment, education, rehabilitation
and placement of people with mental handicap in centres and places of
residence.
Compatibility of Law 117/89
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This Law was considered as a land mark, when it was first enacted
(1989). However many of its provisions are nowadays out of date (it
provides for institutional residence, attendance in special schools,
refers to retarded persons etc.)
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With the support of the Government’s legal service it has been
prepared an extensive amendment of the law which takes into
consideration modern trends and attitudes and suggests an effective
mechanism for observing the realization in practice of the rights of
persons with a mental handicap. The draft amendment law is still
pending for political decision.
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In the text of the draft amendment law there is no explicit reference
“that the persons with a mental handicap have the same rights or
that they are equal before the law. This due to the existing attitudes
concerning protection by third persons and the full and continuous
guardianship. In order the law be compatible with article 12 of the
Convention, further corrective measures should be taken.
Compatibility of Law 117/89 (2)
Recently our Committee agreed to include in the amendments of the Law
the following 3 Units:
1.
Exercise of legal capacity
2.
Protection by a Court of Law
3.
Guarantees for the property receivers.
1.
Exercise of Legal Capacity
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The person with mental disability has equal rights
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Is entitled to proper support from the State for the exercise of
his/ her legal capacity
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The support should take account of the preferences and abilities
of the person.
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The person has a right to own and keep property and to control
his/ her financial affairs, provided he/ her has been assessed as
capable of exercising his/ her legal capacity.
Compatibility of Law 117/89 (3)
2. Protection by a Court of Law
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A person with a mental handicap who has been assessed that can
not exercise his/her legal capacity or to express his/ her will or to take
his/ her own decisions should be placed under the protection of the
competent District Court.
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On the submission of an application by parents, relatives, the
Committee or the District Welfare Officer, the court examines and if it
considers necessary appoints a property receiver or/ and guardian to
whom the administration of the property is entrusted for a specified
time limit.
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The same person may be appointed as guardian and as property
receiver or may be appointed more than one guardians. The receiver
or the guardian may be appointed by the Social Welfare Services.
Compatibility of Law 117/89 (4)
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The appointment of a property receiver or/ and a
guardian is done according to specific criteria and
procedure, and through a system of legislation and
clearly define assignment.
The guardians have the responsibility for the care of
the person which should safeguard the following:
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The supply to the person of all necessities for a
comfortable dignified and healthy living
The supervision of the residence, living and working
conditions of the person
The dignity of the persons from any kind of exploitation and
insult
The inclusion of the person in the community and his/ her
participation in common affairs
The solution of any problems and satisfaction of needs of
the person.
Compatibility of Law 117/89 (5)
3.Guarantees for the property receiver
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The property receiver cannot, without permission by court:
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To use the property or incomes there from
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To sell, mortgage or change the property
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To buy property on behalf of the person
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To invest money of the person
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To conciliate legal actions in favour or against the person.
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The Court of Law has the power to order the presentation of accounts
of the property and to declare the disposition of property void.
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The Court can give permission for the disposal of property only when
its convinced that it is for the benefit of the person.
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It is an offence on the part of the property receiver the non compliance
to the provisions of this law.
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The Committee is following up and checking any property receiver/
guardian and informs accordingly the Attorney – General of the
Republic.
General Corrective Measures
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It is essential to proceed with the amendment of the Law 117/89
The Law concerning Incapacitated Persons No 23/I/96 and the
Contract Law of 1931 should be amended or abolished as they
deprive the persons with a mental handicap of their rights.
It is essential to encourage self-advocacy with new educational
approaches within schools
For the social inclusion of adult persons with a mental handicap a
Plan of Action should be designed and include inter alia, structures
for deinstitutiolisation or avoiding institutionalisation and
strengthening and supporting families in order to assist them keep
the person with a mental handicap in the family environment.
The voluntary initiative should be only assistive and not decisive.
The State should undertake its responsibilities and provide all the
necessary means, including financing for the services offered to the
persons with a mental handicap by the private sector. The
expanding recourse to charity as a means towards meeting the
needs of the persons with a mental handicap should stop the
soonest possible.