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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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DRAFT LAW NO. 165 /X

DEFINES MEASURES FOR PREVENTION AND COMBATING DISCRIMINATION

EXERCISE OF RIGHTS FOR REASONS BASED ON DISABILITY

" States have an obligation to ensure that people with disabilities

be able to exercise their rights, including their civil and political rights, in

equality of circumstances with the remaining citizens. States should seek that

organizations of people with disabilities participate in the drafting of the laws

national relating to the rights of persons with disabilities, as well as in the assessment

permanent of these laws " (article 15º of the General Rules of the United Nations on the

Equality of Opportunities for Persons with Disabilities).

At the 15º National Disabled Meeting held on June 25 this year, in

Coimbra, which was attended by half-a-thousand people with disabilities,

coming from all over the Country, important topics and subjects have been discussed which in the plan

political, they cannot, nor should they be ignored.

Since soon, the feeling of abandonment and silence regarding the

aggravation of inequalities and discrimination that harshly affect people

with disabilities-children, young people, men and women of working age or elderly.

The promises to combat social exclusion and promotion of a society

inclusive has not had practical translation, in Portugal, in the adoption of appropriate policies

public that guarantee the effective satisfaction of the specific needs of the people

with disabilities and the promotion of their participation in conditions of equality in all

the spheres of society.

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The vast majority of citizens and citizen carriers (the) of disabilities are

excluded (those) from the exercise of rights, are discriminated against (those) in access under conditions of

equality to education and education, employment, housing, transport.

The growing imbalances and social asymmetries, caused by the concentration of the

richness, by the successive attacks on the most basic social rights, by successive

leveling under the living conditions of the Portuguese and Portuguese, fruit of the

policies carried out by the current government and its predecessors, agrarian of

overlap the, already bad, conditions in which this social group lives.

It is the most discriminated social group among those discriminated against, of the most

poor among the poor. A stratum of the invisible population in the face of posture that the

successive governments take before these citizens by reserving them a space of a

silent minority.

In cause for many is the right to be entitled to rights and the right to exercise

those same rights in the economic, social, political, cultural and sporting plan. In

cause for many is the right to see satisfied their specific needs.

It is still a long way from being fulfilled constitutional precept pertaining to the enjoyment

full of rights by citizens with physical or mental disabilities

(paragraph 1 of Article 71º of the Constitution of the Portuguese Republic) and the obligation of the

State to carry out a national policy for prevention and treatment, rehabilitation and

integration of citizens with disabilities and support for their families (number 2

of the aforementioned article).

The rights organizations of persons with disabilities

develop their important action in a political framework in which they are not

duly secured the right of participation in the elaboration, monitoring and

assessment of sectoral and global policies that persons with disabilities say

respect. Situation to which you add the fact that you are not regulated support to

associations (Article 7º, of Law No. 127/99, of August 20) what prevents clarification

of the rules and a clear definition of funding criteria in respect of the

autonomy of organizations.

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Already since 1977, the Communist Party has been warning and intervening in these

subjects. More recently with the presentation, in 2002, of the bill 533 /VIII

that defined measures to prevent and combat discrimination on the basis of disability,

and, again, through the draft law 166 /IX. Both initiatives ended up

lapse.

The Portuguese Communist Party, in presenting this bill, advocates for

adoption of a legal device that eliminates a set of discriminatory practices

against persons with disabilities but, equally, enshrines the responsibility of the

State in the promotion of public policies that, in an articulated manner, guarantee to

equal rights of citizens and disabled citizenships to education and education, to the

sport, employment with rights, transport, housing, health and safety

social.

Social inclusion policies do not exempt, before they impose, the commitment of the

political power in these two important strands: the combat and prevention of practices

discriminatoryand, equally the delivery of public policies that promote a

effective access and exercise of rights in all areas.

The effectiveness of instruments and mechanisms to combat discrimination and

promotion of equal rights of citizens with disabilities needs to

to contemplate the intrinsic value of the participation of persons with disabilities, through the

their representative organizations, in the elaboration of the policies and measures that direct or

indirectly affect them, as well with the necessity of their defined definition on the basis of

on equality criteria and a transparent financing of these organizations, with

legal consecration in the State Budget.

The creation of the Commission for Equality and Against Discrimination of People

with disabilities and its Advisory Board takes on the greatest relevance in need

of giving due attention to the study and analysis of the reality and specific needs

of persons with disabilities, intervention in the elaboration of the global policies and

sector with incidence in the situation of citizens and citizens with disabilities,

involving not only government departments such as advocacy organizations

of the rights of the disabled.

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Following the suggestions made by the Portuguese Association of

Disabled and by the National Confederation of Disability Organisms, the

Undersigned MPs present the following draft law:

Article 1.

Scope

1-A present law enshrines measures of the efective of fundamental rights

of persons with disabilities through the prevention and prohibition of acts that translate

in the violation of rights on the grounds of disability, in all its forms.

2-The provisions of this Law shall be without prejudice to the duration and application of other

provisions that positively discriminate against persons with disabilities and guarantee the

exercise of your rights.

Article 2.

Concepts

It is understood, for the purpose of this Law, by:

a) Principle of equal treatment: the absence of any discrimination,

direct or indirect, based on reasons of disability.

(b) Direct Discrimination: where a person with a disability is the subject of

a less favourable treatment of which is given to another person.

(c) Indirect discrimination: whenever a provision, criterion or practice is

liable to harm a person with a disability.

d) Positive discrimination: measures to ensure people with

disability the exercise, under conditions of equality, of your rights.

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Article 3.

Discriminatory practices

Discriminatory practices are considered to be against persons with disabilities

actions or doleful or negligent omissions that violate the principle of equality,

particularly:

a) The adoption of procedure, measure or criterion used by the entity

employing, public or private employer, direct or through general directives and instructions

internal in the workplace or those given to the employment agency, which translates into

discrimination of persons with disabilities in the offer of employment, on cessation of

contract of employment, refusal to hire or any other aspect of the relationship

labour;

b) The production or diffusion of advertisements of job offers, or other forms

of advertising linked to the pre-selection or recruitment, which contain, direct or

indirectly, any specification or preference based on factors of

discrimination on the grounds of disability;

c) The refusal of supply or impediment of fruition of goods, equipment

or services, on the part of any natural person or legal person, public or

private;

d) The refusal or conditioning of sale, renting or subletting

of real estate, as well as access to bank credit for purchase of housing, so

as the refusal or penalty in the conclusion of insurance contracts;

e) the refusal, impediment or limitation of access to public or open places

to the public, or to public transport, whether air, land or maritime;

f) The refusal, limitation or impediment of access to the establishments of

health or teaching, public or private, or any means of compensation and support

appropriate to the specific needs of persons with disabilities;

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g) The adoption of internal organisational measures in educational establishments

public or private that harm the inclusion of persons with disabilities;

h) the adoption of measures limiting access to new technologies;

i) The refusal in the payment of the social disability pension in the case of union of

fact or marriage of persons with disabilities.

Article 4.

Responsibility of the State

1-Compete to the State the adoption and promotion of public policies that

guarantee equal opportunities for persons with disabilities, contemplating,

particularly:

a) The fulfilment of the employment quota in the Public Administration, with a guarantee

of access to vocational training, protection and maintenance of jobs

of persons with disabilities and promotion of employment with rights;

b) The creation of appropriate services to facilitate the placement in the labour environment of

persons with disabilities such as personal assistance and services of language interpreters

gestural, transcription of texts and documents in Braille ;

c) The guarantee of public policies that ensure equal opportunities

of access to education and education by ensuring, in particular, effective integration

school of children and young people with disabilities in the public school system, to all

levels;

d) The support for special educational needs and educational supports

sustained in the concept of inclusive school that allow to ensure equality of

opportunities for access and success in the education system;

e) The guarantee of a public network of special education and supports to institutions of

private and cooperative education of recognized merit;

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f) The adoption and implementation of programmes within the framework of the National Service of

Health that aim at the early detection of disability, its assessment and treatment;

g) The guarantee that persons with disabilities with specific needs

have access in a continuing manner to rehabilitation services and care of

health;

h) The lifting of medicines, dietary supplements and products from

frequent application related to all types of disability and ensure support

effective with respect to medicinal products, auxiliary means of correction or compensation and

others, as well as the increase in the state's comparticipation in prosthetics, orthothesis and

compensation devices;

i) The adoption and implementation of reinforcement measures in the framework of security

social support for families and citizens with disabilities;

j) The creation of a Telephone Service Telephone-S. O.S-Voice of the

Handicapped, for handicapped in difficulties (social, labour, economic, physical,

family, affective, among others) in order to combat social factors and

negative psychology.

Article 5.

Commission for Equality

The Commission for Equality and Against Discrimination of Persons with

Disability, hereinafter abbreviated by Commission, with the assignments and

competencies provided for in the following articles.

Article 6.

Nature and objectives

The Commission is a body vocated for the study and analysis of reality,

in the optics of equality of rights and opportunities, and for intervention in all

areas with incidence in the situation of persons with disabilities, in the sense of them

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ensure the full exercise of their rights and to contribute to the society to ensure

their complete integration.

Article 7.

Competencies

1-Are competences of the Commission:

a) Intercoming in the elaboration of the global and sectoral policy with incidence in the situation

of citizens with disabilities;

b) To contribute to the legislative changes judged necessary in the different

areas, proposing measures, and raising the creation of mechanisms that show

necessary for the effective compliance of the laws;

c) Give advice on legislative initiatives concerning the area of disability;

d) Promoting dissemination and training actions, aiming at the awareness of the

citizens with disabilities and society as a whole in relation to the situations of

existing discrimination;

e) Realize and support interdisciplinary research on the thematic of the

disability and the situation of citizens with disabilities, notably by raising awareness of the

competent bodies for the necessity of their statistical treatment and promoting

your disclosure;

f) Inform and raise public awareness about the subject matter of disability,

through the media, the publishing of publications, the maintenance of

a centre for documentation and a specialized library;

g) To contribute to the access to the right through an information service

legal directed to the citizen with a disability;

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h) Cooperate with organizations of international scope and with bodies

foreigners pursuing related objectives with those of the Commission, with a view to

participate in the major international guidelines regarding equality and link them to

national level;

i) Communicate to competent entities or make public cases of effective

violation of this Law;

(j) to draw up and publish an annual report on the situation of equality and the

discrimination of persons with disabilities in Portugal;

k) Receive and forward the complaints or shareholdings to you formulated with

view the appropriate procedure;

l) Proceeding to the assessment of the impacts of global employment policies, health,

social security, public works and transport in persons with disabilities;

m) Realize or support other actions within the framework of the Commission's objectives.

Article 8.

Composition

1-A The Commission shall consist of the following entities:

a) Two representatives nominated by the Assembly of the Republic;

b) Four representatives of the Government with a connection to employment and security

social, education, health to public works and transport;

c) Six representatives of the associations of persons with disabilities of scope

national, being, at least one, representative of the National Confederation of

Bodies of Disabled;

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d) Two representatives of nongovernmental organizations with activity in the

area of disability;

(e) A representative of the Order of Lawyers;

f) Two representatives of the union power stations;

g) Two representatives of the employers ' associations;

h) Three personalities to be designated by the remaining members.

2-For the purposes of point (c) it is understood that an association of persons with

disability is the one in which most of the partners as well as the managers ' bodies are

consisting of persons with disabilities or parents of persons with disabilities who do not

can exercise their own representation.

3-The plenary of the Commission elects, at the first meeting, the President of the

Commission from among its members, by qualified majority and under proposal of the

Ministry of tutelage.

Article 9.

Installation

It is incumbent upon the Government to install the Commission and endoit it with the technical means and

humans required for their functioning.

Article 10.

Organs

They are organs of the Commission:

a) The President;

b) The Standing Commission;

c) The Technical Coordination Council;

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d) The Advisory Board.

Article 11.

President

The President shall compete to represent the Commission and exercise the powers inherent in the

its direction, direction and overall management.

Article 12.

Standing committee

1-A The Commission has a Standing Committee, composed of the

president and by two members elected by the remaining, being obligatorily one of them,

representative of an organization of persons with disabilities.

2-A Commission meets ordinarily once a quarter and

extraordinarily whenever summoned by the President, listened to the Commission

Permanent or the application for a third of its members.

Article 13.

Advisory Board

1-The Advisory Board is an organ that ensures the participation of

government departments and the associations of persons with disabilities

as to the pursuit of the objectives of the Commission and contributes to the definition and

implementation of policies regarding disability.

2-The Council shall be composed of the Interministerial Section and the Section of

Associations of Persons Persons of Disability.

3-The plenary of the Advisory Board meets ordinarily three times by

year, and may meet extraordinarily by convening of the President or the Commission

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Permanent and deliberates by simple majority whenever it is present at least one

third of its members.

4-Powers to take part in the meetings of the Advisory Board or sections,

without right to vote, at the invitation of the President, individualities of recognized

competence with respect to the subject of disability.

Article 14.

Interministerial Section

1-A Interministerial Section of the Advisory Board is integrated by

representatives of government departments from the areas of Public Administration

considered to be of interest to the objectives of the Commission.

2-A The definition of these areas will be made by dispatching from the members of the Government

of which they depend.

3-Competing it, namely:

a) Ensuring the cooperation of all sectors of the Administration;

b) Faculty information that you have knowledge of through your

departments with incidence in the problem of disability.

(c) to comment on the projects submitted to it;

d) Follow up and evaluate the implementation of policy measures concerning the

deficiency arising from commitments made internationally,

in particular by the European Union.

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Article 15.

Section of the Associations of Disabled Persons of Disability

1-A Section of the Associations of Persons Persons of Disability of the

Advisory Board consists of representatives of organizations of persons with

disability whose objectives are coated with those of the Commission, who exercise their

activity in the entire national territory, and of organizations whose field of action or

programmes aim at improving the living conditions and defence of human rights of the

people with disabilities.

2-Compete to the Standing Committee the designation of the organizations to which

reports the previous number, following the assessment of the respective statutes.

3-Compete to the Section, namely:

a) To contribute to the definition of the policy on citizens with disabilities and

the equality of rights and opportunities, conveying the position taken by the various

associations;

(b) to collaborate in the realization of the defined policy, particularly through the

implementation of joint projects and mobilization of citizens or groups to which the

organizations have access;

(c) to comment on the projects submitted to it.

Article 16.

Technical Coordination Council

1-The Technical Coordination Council is a supporting body that aims to assist

the remaining organs in the performance of their duties.

2-A composition, skills and operation will be decided in

internal regulation to be approved by the Commission.

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Article 17.

Duty of cooperation

Public and private entities should cooperate with the Commission on

pursuit of its activities.

Article 18.

Onus of the Proof

When a person considers themselves to be targeted by any of the types of

discrimination on the grounds of disability set out in this Law, it is up to the requested Party

prove that there was no violation of the principle of equality.

Article 19.

Sanctions

1-A practice per natural person of discriminatory act, under the terms of

present law, by natural person, constitutes counterordinance punishable with fine

graduated from five to ten times the value of the national minimum wage, without prejudice to the

possible civil liability or the application of another sanction that would be the case for the couber case.

2-A practice of any discriminatory act, pursuant to this Law, by

legal person of public law or private law, constitutes counterordinance

punishable with graded fine enters 20 a to 30 times the value of the national minimum wage,

without prejudice to the possible civil liability or the application of another penalty which to the

case couber.

3-The sanctionatory regime should be regulated in accordance with the present

law.

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Article 20.

Omission of duty

Where the counterordinance results from the omission of a duty, the application of the

sanction and the payment of the fine does not waiver the agent of his / her compliance, if this

is still possible.

Article 21.

Registration

1-All decisions proving discriminatory practice in relation to the

disability should be communicated to the Commission, which will arrange for a registration of the

Same.

2-In the course of any proceeding based on the violation of the right to

equal treatment the judder may request information from the Commission, which will give it,

on the existence of any decision already carried out on trial concerning the entity in

cause.

Article 22.

Associations of Disabled Persons of Disability

The Associations of Disabled Persons of Disabilities provided for in Law No.

127/99, of August 20, shall enjoy the right of complaint and denunciation, as well as of the

right to constitute themselves as assistants at the headquarters of Criminal Procedure and, when the

require, of the right to accompany the counterordinational process by the practice of

any discriminatory act provided for in this Law and subsequent regulations.

Article 23º

Funding

The grants to be awarded in each year to the Disability Carmakers Associations

are listed in their own item to be enrolled in the State Budget.

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Article 24.

Regulation

The Government should regulate this Act within the maximum period of 90 days.

Article 25.

Entry into force

1-Budget-incidence standards come into force with the Budget

of the subsequent State.

2-The remaining shall come into force within 30 days of the date of its

publication.

Assembly of the Republic, September 23, 2005

The Deputies,