Key Benefits:
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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,