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Article
5 - Equality and non-discrimination
Background
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Background
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Fifth Session
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Governments
EUROPEAN UNION
EQUALITY AND NON-DISCRIMINATION
EU Position 4th AHC: Accept a separate article 7 and replace to
become Article 3.
1. States Parties recognise that all persons are equal before the law and are
entitled without any discrimination to the equal protection of the law. States
Parties shall prohibit any discrimination on the basis of disability, and guarantee
to all persons with disabilities equal and effective protection against discrimination.
States Parties shall also prohibit any discrimination and guarantee to all persons
with disabilities equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth, source or type of disability, age,
or any other status.
EU Proposal: The EU proposes that references to multiple
forms of discrimination should be moved to the Preamble. Therefore, the EU proposes
the deletion of the last sentence in Paragraph 1.
2.
(a) Discrimination shall mean any distinction, exclusion or restriction which
has the purpose or effect of impairing or nullifying the recognition, enjoyment
or exercise by persons with disabilities, on an equal footing, of all human
rights and fundamental freedoms.
(b) Discrimination shall include all forms of discrimination, including direct,
indirect1 and systemic, and shall also include discrimination based on an actual
or perceived2 disability.
EU Proposal: EU proposes replacing paragraph 2 (a) and (b)
with the following:
“For the purpose of the present Convention, the term "discrimination
on the grounds of disability" shall mean any distinction, exclusion or
restriction which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise on an equal footing by persons with disabilities of all
human rights and fundamental freedoms.”
a. Direct discrimination shall be taken to occur where one person is treated
less favourably than another is, has been or would be treated in a comparable
situation, on the grounds of disability;
b. Indirect discrimination shall be taken to occur where an apparently neutral
provision, criterion or practice would put a person having a disability at a
particular disadvantage compared with other persons, unless that provision,
criterion or practice is objectively justified by a legitimate aim and the means
of achieving that aim are appropriate and necessary or unless measures are taken
to eliminate that disadvantage
3. Discrimination does not include a provision, criterion or practice that is
objectively and demonstrably justified by the State Party by a legitimate aim
and the means of achieving that aim are reasonable and necessary. 3
EU Proposal: Delete Paragraph 3
4. In order to secure the right to equality for persons with disabilities, States
Parties undertake to take all appropriate steps, including by legislation, to
provide reasonable accommodation,4 defined as necessary and appropriate modification
and adjustments to guarantee to persons with disabilities the enjoyment or exercise
on an equal footing of all human rights and fundamental freedoms, unless such
measures would impose a disproportionate burden.
EU Proposal: EU suggests the following rewording of Paragraph 4
4. In order to guarantee compliance with the principle of equal treatment in
relation to persons with disabilities, States Parties undertake to take all
appropriate steps, including by legislation, to ensure that reasonable accommodation
is provided; reasonable accommodation to be defined as necessary and appropriate
modification and adjustments, where needed in a particular case, to ensure to
persons with disabilities the enjoyment or exercise on an equal footing of all
human rights and fundamental freedoms, unless such measures would impose a disproportionate
burden.
5. Special measures5 aimed at accelerating de facto equality of persons with
disabilities shall not be considered discrimination as defined in the present
Convention, but shall in no way entail as a consequence the maintenance of unequal
or separate standards; those measures shall be discontinued when the objectives
of equality of opportunity and treatment have been achieved;