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BEFORE: |
MEMBERS: Mr. Andres Aguilar (Venezuela),
Mr. Mohammed Al Douri (Iraq), Mr. Nejib Bouziri (Tunisia),Mr. Joseph
A.L.Cooray (Sri Lanka), Mrs. Gisele Cote-Harper (Canada), Mr. Vojin
Dimitrijevic (Yugoslavia), Mr. Felix Ermacora (Austria), Mr. Rojer
Errera (France), Sir Vincent Evans (United Kingdom), Mr. Bernhard
Graefrath (German Democratic Republic), Mr. Vladimir Hanga
(Romania), Mr. Andreas Mavrommatis (Cyprus), Mr. Anatoly Petrovich
Movchan (Soviet Union), Mr. Birame Ndiaye (Senegal), Mr. Torkel
Opsahl (Norvay), Mr. Julio Prado Vallejo (Ecuador), Mr. Alejandro
Serrano Caldera (Nicaragua), Mr. Christian Tomuschat (Federal
Republic of Germany)
All members, except Mr. Errera and Mr. Movchan, attended the
twenty-first session.
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PermaLink: |
http://www.worldcourts.com/hrc/eng/decisions/1984.04.10_Disabled_in_Italy_v_Italy.htm |
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Citation: |
Disabled in Italy v. Italy, Comm.
163/1984, U.N. Doc. A/39/40, at 197 (HRC 1984) |
Publications: |
Report of the Human Rights
Committee, U.N. GAOR, 39th Sess., Supp. No. 40, U.N. Doc. A/39/40,
Annex XV, at 197 (Sep.20, 1984); Office of the U.N. High Comm'r for
Human Rights, Selected Decisions of the Human Rights Committee under
the Optional Protocol, Vol. II, at 47, U.N. Doc. CCPR/C/OP/2, U.N.
Sales No. E.89.XIV.1 (1990) |
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DECISION ON ADMISSIBILITY
1. The authors of the communication, dated 9 January 1984, are a group of
associations for the defence of the rights of disabled and handicapped
persons in Italy (a non-governmental organization hereinafter referred to as
the "Coordinamento") and the representatives of those associations, who
claim that they are themselves disabled or handicapped or that they are
parents of such persons. Although the representatives are primarily acting
for the Coordinamento, they also claim to act on their own behalf.
2. The authors challenge article 9 of the Italian law decree of 12 September
1983, No. 463, which was later confirmed by Parliament and enacted as
article 9 of law No. 638 of II November 1983. [FN1] They contend that this
provision infringes article 26 of the International Covenant on Civil and
Political Rights in that it violates the right to work of disabled and
handicapped persons. No submissions have been made regarding individual
cases. The authors apparently seek a pronouncement of the Human Rights
Committee that article 9 of law No. 638 was enacted in violation of Italy's
commitments under the Covenant.
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[FN1] Article 9 of law No. 638 of II November 1983 reads as follows:
"Article 9
" 1. Pending amendment of the compulsory employment regime, the provincial
offices concerned with labour and promoting full employment shall, prior to
the assignment to work of persons entitled to the benefits provided under
Act No. 482 of 2 April 1968 and subsequent amendments thereto, ensure that
such persons whose degree of disability is less than 50 percent undergo a
medical examination to be conducted by the competent health authority in
order to verify whether their state of disability is unchanged. Arrangements
shall be made for the examination to be given within fifteen days from the
date of the decision to assign them to work. Otherwise, in every case they
shall be assigned, subject to later confirmation.
"2. The names of persons failing to present themselves for the examination
refeffed to in the foregoing paragraph shall be deleted from the relevant
lists in article 19 of Act No. 482 of 2 April 1%8.
"3. Persons employed under the regular placement procedure and subsequently
found to be suffering from disabilities not incurred in their work or
service and having a degree of disability Of less than 60 per cent shall be
considered for the purposes of the gregate compulsory work percentage
referred to in article 11, 9 paragraph 1. of Act No. 482 of 2 April 1968.
"4. The provisions concerned them in article 9, last paragraph, of Act No.
482 of 2 April 1968 shall not apply."
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3. Article 9 contains a modification of the legal regime providing for the
compulsory employment of disabled and handicapped persons laid down in law
No. 482 of 2 April 1968. According to articles I I and 12 of that law,
private as well as public undertakings whose force exceeds 35 persons are
obliged, in principle, to employ 15 per cent disabled or handicapped
persons, a percentage which may rise to 40 per cent for "auxiliary
personnel" in the case of public undertakings. At the same time, article 9
of the 1968 law divided the total number of disabled and handicapped persons
to be employed compulsorily into different categories, reserving, in
particular, 25 per cent for military war Victims and 10 per cent for
civilian war victims, while 15 per cent were allotted for victims of labour
accidents and 15 per cent for ordinary disabled or handicapped persons ("invalidi
civili"). To the extent that any particular category could not be filled by
persons within that category, the entitlement was transferred to persons in
the other categories. Considering that few war victims remain, the
redistribution scheme significantly benefitted disabled and handicapped
persons in other categories. By virtue of paragraph 4 of the impugned
article 9, this redistribution scheme was abolished. As a consequence, the
authors allege that the amendment has considerably reduced the number of
work posts available to ordinary disabled or handicapped persons ("invalidi
civili"). Furthermore, they criticize paragraph 3 of the same article which
permits employers to take into account, for the purpose of demonstrating
their compliance with the compulsory element of 15 per cent of the work
force, also those workers whom they have hired outside the special procedure
for the employment of disabled and handicapped persons, provided that their
disability or handicap exceeds 60 percent.
4. Before proceeding to the merits of a case, the Human Rights Committee
must ascertain whether the conditions of admissibility as laid down in the
Optional Protocol to the International Covenant on Civil and Political
Rights are met.
5. According to article I of the Optional Protocol, only individuals have
the right to submit a communication. To the extent, therefore, that the
communication originates from the Coordinamento, it has to be declared
inadmissible because of lack of personal standing.
6.1. As far as the communication had been submitted on their own behalf by
the representatives of the different associations forming the Coordinamento
it fails to satisfy other requirements laid down in articles I and 2 of the
Optional Protocol.
6.2. The author of a communication must himself claim, in a substantiated
manner, to be the victim of a violation by the State party concerned. It is
not the task of the Human Rights Committee, acting under the Optional
Protocol, to review in abstracts national legislation as to its compliance
with obligations imposed by the Covenant. It is true that, in some
circumstances, a domestic law may by its mere existence directly violate the
rights of individuals under the Covenant. In the present case, however, the
authors of the communication have not demonstrated that they are themselves
actually and personally affected by article 9 of law No. 638 of I I November
1983. Consequently, the Committee is unable, in accordance with the terms of
the Optional Protocol, to consider their complaints.
7. The Human Rights Committee therefore decides:
The communication is inadmissible.
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