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. 165/X DEFINES measures to prevent and COMBAT discrimination EXERCISE of RIGHTS on GROUNDS BASED on disabilities "States have an obligation to ensure that people with disabilities can exercise their rights, including their civil and political rights, on equal terms with other citizens. States must ensure that organizations of persons with disabilities to participate in the drafting of national laws relating to rights of persons with disabilities, as well as in the permanent assessment of these laws "(article 15 of the General United Nations Rules on equal opportunities for people with disabilities).

In the 15th national meeting of disabled people held on 25 June this year, in Coimbra, which was attended by 500 people with disabilities from around the Country, were discussed important issues and matters that, politically, cannot, and must not be ignored.

Since then, the feeling of abandonment and silence with regard to the aggravation of inequalities and discrimination affecting severely disabled people-children, youth, men and women of working age or elderly.

The promises of combating social exclusion and promoting an inclusive society hasn't been practical translation, in Portugal, in the adoption of appropriate public policies that ensure effective satisfaction of the specific needs of persons with disabilities and the promotion of your participation under conditions of equality in all spheres of society.

2 the vast majority of citizens (the) carriers of disabilities are excluded (as) the exercise of rights, are discriminated against (the) access on equal terms to teaching and education, employment, housing, transport.

The growing social imbalances and asymmetries caused by the concentration of wealth, by successive attacks on the most basic social rights, by subsequent levelling down of living conditions of the Portuguese Portuguese and, as a result of the policies pursued by the current Government and its predecessors, aggravate the already greatly bad, conditions in which he lives this social group.

This is the social group most discriminated among the discriminated, the poorest of the poor. A stratum of the population invisible face posture that successive Governments take in the face of these citizens, reserving them a space of a silent minority.

At issue for many is the right to be holder of rights and the right to exercise these rights in the economic, social, political, cultural and sportive. At issue for many is the right to see met their specific needs.

Is still far from being met constitutional precept concerning the full enjoyment of rights on the part of citizens suffering from physical or mental disabilities (number 1 of article 71 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 disabled citizens and support their families (number 2 of the aforementioned article).

Rights organisations of persons with disabilities develop your important action in a political framework in which are not properly secured the right to participate in the preparation, monitoring and evaluation of sectoral and global policies that concern for people with disabilities. Situation to which furthermore not be regulated support associations (article 7 of law No. 127/99, of 20 August) which prevents the clarification of the rules and a clear definition of funding criteria on respect for the autonomy of the organizations. 3 since 1977 that the Communist party comes alerting and intervened in these matters. More recently with the presentation, in 2002, of the draft law 533/VIII which defined measures to prevent and combat discrimination based on disability, and, again, through the draft law 166/IX. Both initiatives have expires.

The Portuguese Communist Party, in tabling the Bill, advocates the adoption of a cool device that eliminates a number of discriminatory practices against people with disabilities, but also establishes the responsibility of the State in the promotion of public policies, articulated, ensure the equal rights of citizens with disabilities to teaching and education, sports , to employment with rights, transport, housing, health and social security.

Social inclusion policies do not exempt, before imposing, the commitment of political power in these two important aspects: the combat and prevention of discriminatory practices and, also the implementation of public policies that promote effective access and exercise of rights in all areas.

The effectiveness of instruments and mechanisms for combating discrimination and promoting equality of rights of citizens with disabilities need to contemplate the intrinsic value of participation of persons with disabilities, through their representative organizations, in the development of policies and measures which directly or indirectly affect them, as well as the need of your definition defined on the basis of equality and transparent funding 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 your Advisory Board assumes the greater relevance the need to give due attention to the study and analysis of reality and of the specific needs of persons with disabilities, the intervention in global and sectoral policymaking with impact on the situation of citizens with disabilities , involving not only government departments as rights organisations of disabled people. 4 following the suggestions made by the Portuguese Association of the handicapped and the National Confederation of disabled people's Organizations, the undersigned Members have the following draft law: article 1 Scope 1 — this Law enshrines gross measures of fundamental rights of persons with disabilities through prevention and prohibition of acts which result in the violation of rights on the grounds of disability under all its forms.

2 — the provisions of this law shall not affect the validity and application of other provisions that discriminate positively disabled persons and guarantee the exercise of their rights.

Article 2 Concepts means, for the purposes of this Act, by:

the principle of equal treatment): the absence of any direct or indirect discrimination based on the grounds of disability.

b) direct discrimination: where one person with a disability is subject to less favourable treatment that is given to another person. c) indirect discrimination: when a provision, criterion or practice is liable to affect adversely a person with disabilities.

d) positive discrimination: measures to ensure to persons with disabilities the exercise, on an equal footing, of their rights.

5 article 3 discriminatory practices are considered discriminatory practices against people with disabilities the dolosas or negligent actions or omissions that violate the principle of equality, in particular: (a)) procedure, measure or criterion used by the employer, whether public or private, directly or through general directives and internal instructions in the workplace or the given the employment agency , resulting in discrimination of people with disabilities in the provision of employment, termination of an employment contract, in denial of employment or any other aspect of the employment relationship;

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;

c) refusal to supply or impediment to enjoyment of goods, equipment or services, by any natural person or legal person, public or private;

d) refusal or condition of sale, lease or subletting of real estate, as well as access to bank credit for the purchase of housing, as well as the refusal or the penalty in the conclusion of insurance contracts;

and) refusal, the impediment or limitation of access to public places or open to the public, or to public transportation, whether by air, land or sea;

f) refusal, limiting or preventing access to health or education institutions, public or private, or any kind of compensation and adequate support to the specific needs of persons with disabilities;

6 g) the adoption of measures of internal organisation in the public or private education institutions that affect the inclusion of people with disabilities;

h) the adoption of measures which limit the access to new technologies;

I) refusal to pay invalidity social pension in the case of de facto union or marriage of people with disabilities.

Article 4 liability of the State — the State 1 the adoption and promotion of public policies that ensure equal opportunities for persons with disabilities, including, in particular: a) compliance with the share of employment in Public Administration, with guaranteed access to vocational training, protection and maintenance of jobs for people with disabilities and employment with rights;

b) the creation of appropriate services to facilitate placement in the middle of working persons with disabilities such as personal assistance and services of sign language interpreters, transcription of texts and documents in Braille;

c) to guarantee public policies that ensure equal opportunities of access to education and education by ensuring, inter alia, an effective school integration of children and young people with disabilities in the public school system, at all levels;

d) support for special educational needs and the educational support that feeds into their concept of inclusive school to ensure equal opportunities for access and success in educational system;

and) to guarantee a public network of special education and support for private and cooperative education institutions of recognised merit; 7 f) the adoption and implementation of programmes under the national health service aimed at the early detection of disabilities, your evaluation and treatment;

g) to guarantee that people with disabilities with special needs have access to continuously to rehabilitation services and health care;

h) the survey of medications, dietary supplements and frequent application related products with all kinds of disabilities and ensure effective support in the field of medicines, auxiliary means of correction or compensation and others, as well as the increased participation of the State in prostheses, orthosis and compensation devices;

I) the adoption and implementation of measures to strengthen social security to families and support to citizens with disabilities;

j) the creation of a Telephone Service Centre-O.r. S-voice of the handicapped, for the handicapped in difficulties (social, employment, economic, physical, emotional, family, among others) in order to combat negative social and psychological factors.

Article 5 Commission for equality is created the Commission for equality and against discrimination of people with disabilities, further abbreviated designated by Committee, with the duties and responsibilities provided for in the following articles.

Article 6 Nature and objectives the Commission is a body geared towards the study and analysis of the reality, in the light of the equal rights and opportunities, and for intervention in all areas which have an impact on the situation of people with disabilities, in order to ensure the full exercise 8 of their rights and to contribute to society to ensure your complete integration.

Article 7 Powers 1 — powers of the Commission Are: a) intervene in the development of global and sectoral policy affecting the situation of citizens with disabilities;

b) contribute to the legislative changes deemed necessary in the various areas, proposing measures, and encourage the creation of mechanisms that are necessary for effective compliance with laws;

c) give an opinion on legislative initiatives concerning disability area;

d) Promote dissemination and training, aiming at awareness of citizens with disabilities and society in your set in relation to situations of discrimination;

and) Perform and support interdisciplinary research on the issues of disability and the situation of citizens with disabilities, in particular raising the bodies responsible for the need of your statistical treatment and promoting your disclosure;

f) inform and sensitize public opinion on the subject of disability, through the media, publications editing, the maintenance of a documentation centre and a specialized library;

g) contribute to the access to the right through a legal information service directed to citizens with disabilities;

9:00) Cooperate with international organizations and foreign agencies pursuing related objectives with those of the Commission, in order to participate in major international guidelines concerning equality and link them at the national level;

I) Communicate to the competent authorities or make public cases of effective violation of this law;

j) prepare and publish an annual report on the situation of equality and discrimination of persons with disabilities in Portugal;

k) Receive and forward complaints or equity before you formulated with a view to appropriate procedure;

l) to assess the impacts of the global policies of employment, health, social security, public works and transport on people with disabilities;

m) Conduct or support other actions within the framework of the objectives of the Commission.

Article 8 Composition 1 — the Committee shall consist of the following entities: the) two representatives appointed by the Assembly of the Republic;

b) Four government representatives with link to employment and social security, to education, to health, to public works and transport;

c) six representatives of associations of people with disabilities nationwide, and at least one representative of the National Confederation of disabled people;

10 d) two representatives of non-governmental organizations active in the field of disabilities;

and) a representative of the Bar Association;

f) two representatives of the Trade Union Central;

g) Two representatives of employers ' associations;

h) three personalities to designate by other members.

2 — for the purposes of point (c)) it is understood that an Association of people with disabilities is one in which the majority of the partners as well as of the bodies managers consists of disabled people or parents of disabled people who cannot exercise your own representation.

3 — the plenary of the Commission shall elect, at the first meeting, the Chairman of the Committee from among its members, by a qualified majority on a proposal from the Ministry of supervision.

Article 9 the Government Installation install the Commission and provide the technical and human resources required for your operation.

Article 10 Bodies Are agencies of the Commission: a) the President; (b)) the Standing Committee; c) the Technical Coordination Council; 11 d) Advisory Council.

Article 11 President the President competes representing the Commission and exercise the powers inherent in your direction, guidance and overall management.

Article 12 1 Standing Committee — the Commission is assisted by A Standing Committee, composed of the President and two members elected by the remaining, being necessarily one of them, representative of an organization of people with disabilities.

2 — the Commission meets ordinarily once a quarter and extraordinarily whenever convened by the President, heard the Standing Committee or at the request of one third of its members.

Article 13 1 Advisory Council — the Advisory Council is a body which ensures the participation of government departments and associations of persons with disabilities regarding the pursuit of the objectives of the Commission and contributes to the definition and implementation of policies related to disability.

2 — the Council is composed by the Interministerial Section and the Section of associations of People with disabilities.

3 — the plenary of the Advisory Council meets ordinarily three times a year, and may convene extraordinarily convened by the Chairman or the Commission Permanent and 12 shall act by simple majority whenever there is at least one third of its members.

4-Can take part in the meetings of the Board or of the Chambers shall be non-voting, at the invitation of the President, individuals of recognized competence in relation to the theme of disability.

Article 14 Interministerial Section 1 — the Interministerial Section of the Advisory Council is composed of representatives of government departments in the areas of public administration considered relevant to the objectives of the Commission.

2 — the definition of these areas will be made by order of the Government members that depend on.

3 — it is, in particular: a) ensure cooperation of all sectors of administration;

b) provide information that knowledge through its departments focusing on disability issues.

c) decide on the projects to be submitted;

d) monitor and evaluate the implementation of policy measures relating to disabilities arising from commitments made internationally, particularly by the European Union.

13 article 15 Section of associations of disabled people 1 — section of associations of people with disabilities Advisory Council is made up of representatives of organizations of persons with disabilities whose objectives fit with those of the Commission, exercising your activity throughout the national territory, and of organizations whose field of action or programmes aimed at improving the living conditions and human rights of persons with disabilities.

2 — the Standing Committee the names of the organizations to which the preceding paragraph refers, following the assessment of the respective statutes.

3 — the Section, namely: a) contributing to the definition of the policy relating to citizens with disabilities and equal rights and opportunities, transmitting the position taken by the various associations;

b) collaborate in the implementation of the policy, in particular through the implementation of joint projects and the mobilization of citizens or of the groups to which the organizations have access;

c) comment on the projects that are submitted.

Article 16 1 Technical Coordination Council — the Technical Coordination Council is a body that aims to assist the remaining organs in the performance of its functions.

2 — the composition, powers and functioning shall be decided on rules of procedure to be approved by the Commission. 14 article 17 cooperation duties public and private entities shall cooperate with the Commission in the pursuit of its activities.

Article 18 burden of proof

When a person is considered the target of any of the types of discrimination on grounds of disability as set out in this law, it is up to the defendant to prove that there was no breach of the principle of equality.

Article 19 Sanctions 1 — the practice for natural person of discrimination, pursuant to this law, natural person, constitutes a misdemeanour punishable by a graduated fine between five and ten times the amount of the 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, in accordance with this law, a legal person governed by public or by private law, constitutes a misdemeanour punishable by a fine graduate enters the 30 20 times the amount of the national minimum wage, without prejudice to the possible application of civil liability or other penalty that the case fits.

3 — the sanctions regime should be regulated in accordance with this law.

15 article 20 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 agent of your compliance with, if this is still possible.

Article 21 1 Record — all decisions regarding discriminatory practice on the basis of disability should be communicated to the Commission, which will hold a record of the same.

2 — in the course of any process based on violation of the right to equal treatment the judge may request information to the Commission, which will, on the existence of any final decision relating to the entity concerned.

Article 22 associations of disabled persons Associations of disabled persons provided for in law No. 127/99, of 20 August, shall enjoy the right of complaint and denunciation, as well as the right to constitute as assistants in the criminal proceedings and, when required, of the right to monitor the violation process by the practice of any discrimination laid down in this law and subsequent regulations.

Article 23 Funding subsidies to be allocated each year to the disabled Associations listed in heading to sign up in the State budget.

16 Article 24 Rules the Government must regulate this law within 90 days.

Article 25 entry into force 1 — standards with budgetary implications come into force with the State budget.

2 — the remaining enter into force within 30 days from the date of your publication.

Assembly of the Republic, 23 September 2005 members