Prohibits And Punishes Discrimination On The Grounds Of Disability And The Existence Of Aggravated Health Risk.

Original Language Title: Proíbe e pune a discriminação em razão da deficiência e da existência de risco agravado de saúde.

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1 DRAFT law No. 161/X PROHIBITS DISCRIMINATION in the EXERCISE of RIGHTS on GROUNDS BASED on DISABILITY or EXISTENCE of AGGRAVATED HEALTH RISKS explanatory memorandum the equality of citizens is a fundamental right that the Constitution of the Portuguese Republic establishes when proclaims in terms broad paragraph. 1 of your article 13, that ' all citizens have the same social dignity and are equal before the law ', and then specify in the article. 71. that "citizens suffering from physical or mental disabilities shall enjoy fully the rights and are subject to the duties enshrined in the Constitution ...".

Despite this, in multiple spheres of everyday life that right remains far from being respected and serious facts and behaviors in relation to many citizens, who represent violations of the law and intolerable discrimination.

These discrimination, arising, especially at work, at school, in limiting access to public goods and services, transport, mobility and ensuring the right to housing, focus, particularly visible on citizens with disabilities and extend in some areas, people with aggravated health risk.

These situations by configuring real attacks on human rights, responsibility to society and impose a duty to seek solutions. Solutions that go through a different cultural attitude, certainly, but also not exempt, before demand, policy and legislative measures to promote the full integration of these citizens.

It is therefore necessary to take measures which are able to prevent, counteract effectively and to penalize discrimination which, directly or indirectly, conditions, limits or denies the fullness of human rights and the equality of opportunity that these citizens must be guaranteed. 2 it is precisely for this purpose that this legislative initiative of "The Green" is presented. A Bill which seeks to match and echo of the claims of the Portuguese Association of the disabled, whose proposals, for your fairness, in essence, we welcome.

A draft anti-discrimination law, similar to the model of diploma in force (Act No. 134/99 of 28 August), prohibiting discrimination in the exercise of rights on grounds based on race, colour, nationality or ethnic origin.

A legislative initiative is consistent with the legislation already adopted in the European Union, including a set of guidelines, which includes anti-discrimination directive 2000/78/EC, establishing a legal framework for equal treatment in employment and occupation, as well as a Community action programme to combat discrimination.

A bill that seeks to give equally innovative response to another problem, for about extending your subject and universe of recipients. It is, in effect, to respond to discrimination of people who are not disabled, are considered at risk of health and aggravated, as such, are discriminated against and they also prevented or limited the exercise of fundamental rights, freedoms and guarantees and conditioned, when not even unable, to access to fundamental goods such as housing.

A legislative initiative to "Green" already presented in 2002 and that after approval in General on January 16 2003, he expires, with the end of the parliamentary term.

In this context, and bearing in mind that the assumptions that motivated your presentation in the previous Parliament, the undersigned, Members of the parliamentary group of the ecologist party "the Greens", feature the following Bill: 3 chapter I General principles Article 1 subject-matter 1-the present law has as its object the prevention and prohibition of discrimination, direct or indirect on the basis of disability and the sanction of the practice of acts which result in the breach of any fundamental rights or on refusal or conditioning of the exercise of any economic, social, cultural rights or others due to any deficiency. 2-the provisions of the preceding paragraph shall also apply to discrimination of people with aggravated health risk.

Article 2 scope 1-this law binds all natural and legal persons, public or private. 2-the provisions of this law shall not affect the validity and application of the laws, regulations or administrative provisions, which benefit certain disadvantaged groups with the aim of ensuring the exercise, under equal conditions, the rights referred to therein.

Article 3 Definitions for the purposes of this Decree-Law: (a)): direct discrimination occurs whenever a person with a disability or health risk aggravated is the subject of a treatment less favourable than that which it is, has been or may be given to another person in a comparable situation; b) indirect discrimination: that occurs whenever an apparently neutral provision, criterion or practice neutral put people with disabilities or health-threatening compounded at a disadvantage compared with others. 4 c) aggravated Health Risk: are considered people with aggravated the health risk suffering from any pathology that determine an organic or functional change irreversible, long-term, potentially crippling evolutionary, without prospect of complete remission and that change the quality of life of the carrier level physical, mental, emotional, and social and economic is potential cause of premature disability or significant reduction of life expectancy. d) discrimination on grounds of disability or aggravated health risk: any distinction, exclusion, restriction or preference on grounds of disability or aggravated risk of health, aimed at or produce as a result the revocation or restriction of the recognition, enjoyment or exercise, on an equal footing, or rights, freedoms and guarantees of economic, social and cultural rights.

Chapter II article 4 discriminatory practices discriminatory practices

1-Consider discriminatory practices against people with disabilities or at risk aggravated the health actions or omissions, negligent or dolosas, which, by reason of a person stop disability or aggravated health risk, violate the principle of equality, namely: a) the adoption of procedure, remedy or option, directly by the employer or through instructions given to its employees or employment agency that makes the factors physical, sensory or mental the offer of employment, termination of contract of employment or a refusal of employment; b) the production or dissemination of advertisements for job vacancies, or other forms of advertising related to the pre-selection or recruitment, which contain, directly or indirectly, any specification or preference based on factors of discrimination on grounds of disability or of the existence of aggravated health risk; c) refusal to supply or impediment to enjoyment of goods or services by any natural or legal person, public or private; d) preventing or limiting access and normal exercise of an economic activity by any natural or legal person, public or private; 5 e) refusal or condition of sale, lease or subletting of real estate, as well as refusal or penalty in the conclusion of insurance contracts; f) refusal, the impediment, or limitation of access to public places or open to the public as well as in access to public transport by using, where appropriate, their technical help; g) refusal, the impediment or limitation of access to health care provided in public and private health establishments; h) refusal, the impediment or limitation of access to educational institutions, public or private, as well as the deprivation of support or specific means of which eventually were failing; I) the establishment of classes or the adoption of other measures of internal organisation in schools, public or private, according to criteria of discrimination based on disability or existence of aggravated health risk, unless such criteria are justified by the objectives referred to in paragraph 2 of article 4; j) the adoption of practice or measure by any company, entity, service, employee or agent of direct or indirect State administration, the autonomous regions or local authorities that condition or limit the practice of the exercise of any right; l) the adoption by the employer of that practice in the context of the employment relationship a worker to discriminate your service; m) the adoption of Act in which, publicly or with the intention of wider dissemination, natural or legal person, whether public or private, issue a statement or transmit information by virtue of which a group of people is threatened, insulted or demeaned by reason of discrimination on grounds of disability or aggravated health risk. 2-it is prohibited to dismiss, apply sanctions or impair any citizen with disability or health risk, aggravated by reason of the exercise of a right or legal action against discriminatory practice.

Article 5 burden of proof when a person is considered the target of any of the types of discrimination on grounds of disability or of the existence of aggravated health risk as set out in this decree-law and 6 present facts establishing the presumption of discrimination, it is for the defendant to prove that there was no breach of the principle of equality.

Chapter III Commission for equality and against discrimination of people with disabilities and aggravated health risk article 6 Composition of the application of this law shall be accompanied by a Commission for equality and against discrimination of people with disabilities and aggravated health risk, to create by the Presidency of the Council of Ministers, and it will have the following composition : a) two representatives elected by the Assembly of the Republic; b) Three representatives of the Government, to be designated by the Government departments responsible for employment and social security, the health and education; c) Six representatives of associations, four representatives of associations and the Confederation of People with disabilities and the two remaining associations or Federation of People with Aggravated Health Risk; d) two representatives of non-governmental organizations in defence of human rights or of citizens; and) a representative of the Bar Association, to be designated by the same; f) two representatives of the Union, to be called central; g) Two representatives of employers ' associations, to designate for these; h) three personalities to designate by other members.

Article 7 Competencies Competes especially at Commission referred to in the previous article: the) approve your rules of procedure; b) compulsory non-binding opinions in all processes of inquiry, disciplinary and sindicâncias initiated by the public administration for acts prohibited by this Act 7 and practiced by holders of organs, employees, agents or similar public administration, within 30 days; c) Collect any information concerning the practice of discriminatory acts and the implementation of the respective sanctions; d) Recommend the adoption of the laws, regulations and administrative measures which it considers necessary to prevent the practice of discrimination by reasons based on disability or aggravated health at risk; e) promote studies and research on the problem of discrimination practiced by reason of disability and aggravated health risk; f) make public, by all the means in your range, actual infringement cases of this law; g) prepare and publish an annual report on the situation of equality and discrimination of persons with disabilities and with aggravated health risk in Portugal.

Article 8 1 Operation-it is the Government providing the necessary means to your operation. 2-the Commission is assisted by A Standing Committee, consisting of a Chairman and four members elected from among its members, being necessarily one representative of an organization of people with disabilities and another of an organization representing people with aggravated health risk. 3-the Commission meets ordinarily once a quarter and extraordinarily whenever convened by the President, heard the Commission permanent.

Article 9 cooperation duties

All entities, public or private, have the duty to cooperate with the Commission in the pursuit of their activities, in particular by providing the data that this request with a view to the preparation of your annual report.

Chapter IV sanctions Regime 8 article 10 Penalties 1-the practice of any discrimination referred to in Chapter II of this law by an individual constitutes a misdemeanour punishable by a graduated fine between five and ten times the highest value of the monthly national minimum wage, without prejudice to the possible application of civil liability or other penalty that the case fits. 2-the practice of any discrimination referred to in Chapter II of this law by a legal person governed by private or public law constitutes a misdemeanour punishable by a graduated fine between 20 to 30 times the highest value of the monthly national minimum wage, without prejudice to the possible application of civil liability or other penalty that the case fits. 3-In case of recidivism, the minimum and maximum limits are raised to double.

Article 11 without prejudice to the other accessory Penalty sanctions to the case will fit, in relation to the discriminatory acts provided for in this law, the judge may, on an accessory, apply the following penalties: the Publicity of the decision); b) warning or public censure to the authors of the discriminatory practice; c) Arbitrate a settlement-penalty in favour of the person discriminated against, given the degree of violation of the interests involved, economic power of the offenders and conditions of the person concerned by the discriminatory practice.

Article 12 infringements contest 1 — If the same fact constituting simultaneously a misdemeanour criminal and illicit, the agent is always punished under criminal law. 9 2 — the sanctions applied to breaches in competition are always cumulated materially.

Article 13 Omission of duty where the alleged infringement resulting from the omission of a duty, the application of the penalty and the payment of the fine does not relieve the infringer of your compliance with, if this is still possible.

Chapter V General provisions article 14 Interpretation and integration the precepts of this law should be interpreted and integrated in harmony with the Universal Declaration of human rights, the Convention for the protection of human rights and fundamental freedoms, the General rules for the equal opportunities of people with disabilities and the Declaration of commitment on HIV/AIDS , adopted by the United Nations, on 27 June 2001.

Article 15 Financial Arrangements the provisions of this Act with financial implications come into force with the State budget for the year following the entry into force of this regulation, in accordance with the provisions of paragraph 2 of article 167 of the Constitution.

Article 16 the Government Regulations, under the rules of this law, take the necessary measures for the establishment of the Commission for equality and against discrimination of people with disabilities and aggravated health risk and define the administrative bodies with competence for the application of the 10 fines for discriminatory acts referred to in Chapter II, within 120 days of your entry into force.

São Bento Palace, 20 September 2005.

The Members of "the Greens"