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Shakhriyor Tojiboev

March 2, 2021

Introduction

            Currently, more than 700,000 people with disabilities live in Uzbekistan, 100.000 of them being children under the age of 16. In order to ensure their rights the Law “On the Rights of Persons with Disabilities” (hereafter ‘Law’) was adopted and it came into force on January 16, 2021. The adoption of this Law will eliminate the shortcomings of previous Law on Social Protection of Disabled Persons adopted in 2008, which was in practice in the country. In fact, the adoption of this law is an important step in ensuring the rights of persons with disabilities. This is because disability was defined as a human rights problem in the first place, not a neither as a social protection nor a medical problem. To give you some further information, Uzbekistan has not ratified UN Convention on the Rights of Persons with Disabilities (hereafter ‘CRPD’) yet. However, authorities is working to ratify the Convention. In particular, the People’s Democratic Party of Uzbekistan intends to discuss the ratification of the convention in its fraction.

To what extent are international standards reflected in the newly adopted law? And to what extent can the new version of the updated law ensure the rights and legitimate interests of persons with disabilities? In this blog post, I will make a comparative analysis of the above questions based on the norms set out in international documents and the newly adopted Law.

 Imperfect concept of “persons with disabilities” in the Law

The first issue I would like to mention is that the concept of “persons with disabilities” is still not based on the new Law in terms of human rights and equality in society. The main reason for this is that the Law defines people with disabilities as persons in need of “social assistance and protection”. To describe them in this way is to prevent them from having equal rights with others and to discriminate against them in society. Therefore, the focus should not be on providing them with social assistance or protection, but on creating equal opportunities and conditions for them. One of the main news was the use of the term “person with a disability” instead of the word “disabled” in the newly adopted law. The adopted law stipulated that persons with disabilities have stable, mental, sensory or mental disabilities that require the creation of conditions for equal, full and effective participation in the political, economic and social life of society. The reason why am I referring to CRPD is that it is main international treaty which sets international standards for the regulation and enforcement of the rights of persons with disabilities. However, the CRPD states that “disability is an evolving (in Law, it is stated “stable”) concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”. 

A lack of effective access to justice for persons with disabilities

Another issue is that the main feature of the law is the introduction of the concept of “discrimination on the basis of disability”, which was not previously provided in previous law. According to Article 6 of the Law, any exclusion, restriction or preference for persons with disabilities, as well as the refusal to create conditions for the use of facilities and services by persons with disabilities is prohibited. Accordingly, persons with disabilities may apply to the court for refusal to create conditions for them to enter work, study or use a particular service. Article 18 of the Law also states that the state guarantees equal and effective legal protection of persons with disabilities from all forms of discrimination. 

Article 13 of the CRPD states that States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

However, the Law partially reflects the norm set out in this international convention, as Article 28 of the law provides that persons with disabilities may use the services of a sign language interpreter in inquiries, investigations and all court proceedings, and Article 29 provides for a facsimile signature. In relation to the final issue, Diego Garcia-Sayan, the UN Special Rapporteur on the Independence of Judges and Lawyers visited Uzbekistan in 2019. In his report, he noted the partial or complete lack of access to courthouses, especially outside major cities, the lack of sign language interpreters and the lack of court documents in available formats for persons with sensory, intellectual or psychosocial disabilities. In light of the above norms and the UN Special Rapporteur’s explanations, it is important to ensure that persons with disabilities have access to justice in order to exercise their legal rights. 

Absence of concept of “universal design” in the new law

The old version of the Law on Social Protection of Persons with Disabilities provided for administrative liability for “failure to comply with obligations to ensure unimpeded access to social infrastructure for persons with disabilities, transport, communications, and access to information.” However, it would not be a mistake to say that this norm has not been implemented in practice.

 Article 9 of the CRPD recognizes that State parties should ensure the provision of equal access to the physical environment, transport, information and communication opportunities for persons with disabilities to live independently.

According to the Public Council under the Tashkent city administration, “85% of buildings and social infrastructure are not adapted for use by people with disabilities”. The construction of a new subway also does not take into account the use of public transport by people with disabilities. It is no exaggeration to say that today there are almost no conditions in Uzbekistan for people with disabilities to use public transport. Can the new law change this situation? The situation cannot be changed without the introduction of clear mechanisms to ensure a favorable environment, unless the law repeatedly states the need to create a barrier-free environment.

Unfortunately, the law does not include the concept of universal design in the CRPD, that is:  the design of products, environments, programs and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design. Universal design shall not exclude assistive devices for particular groups of persons with disabilities where this is needed. One of the positive changes in the legislation is the introduction in the law that people with disabilities have the right to social housing on preferential terms.

Ineffectiveness of labor quotas in a labor market

Article 27 of the CRPD recognizes the right of persons with disabilities to work on an equal basis with others. This includes the right of a person with a disability to earn a living through freely chosen employment activities in an open, inclusive and participatory environment for persons with disabilities in the labor market and production environment. The right of persons with disabilities to work is also enshrined in Law, which provides for the employment of persons with disabilities by local authorities in organizations with more than twenty employees in the amount of at least three percent of the total number of employees. However, the mandatory establishment of such quotas for state organizations and enterprises may directly undermine the rights of persons with disabilities to work and freely choose a job as defined in international Convention.  According to the United Nations Disability Status analysis, only 7% of registered persons with disabilities are officially employed in Uzbekistan. The reason for the ineffectiveness of labor quotas may be unsatisfactory monitoring of law enforcement. In this situation, it can be considered that public associations and private enterprises should also be involved in the employment of persons with disabilities.  

Conclusion

In conclusion, the recently enacted Law on the Rights of Persons with Disabilities has several positive changes, but we cannot say that this law is fully in line with international standards. The Law excludes important concepts such as universal design, disability data collection and disability statistics, and does not equate sign language with the state language in terms of its status. The most effective way to address the shortcomings of this legislation and to protect the rights and legitimate interests of persons with disabilities is to ratify the UN Convention on the Rights of Persons with Disabilities. Once ratified, this convention will require the harmonization of legislation on persons with disabilities with international standards.  

Cite as: Shakhriyor Tojiboev, “Law on the rights of persons with disabilities came into force: a successful transformation of international treaty or just another lip service to international society?”, Uzbekistan Law Blog, 02.03.2021