Mental Disability Advocacy Center (MDAC) v. Bulgaria

The Mental Disability Advocacy Center (‘MDAC’) alleged that Bulgaria was violating Article 17(2) (right to free education for children) alone and in conjunction with Article E (non-discrimination) of the Revised European Social Charter (the ‘Charter’) because Bulgaria was not educating children with moderate to profound intellectual disabilities living in homes for mentally disabled children (‘HMDCs’).

MDAC claimed that until 2002, children with moderate to profound intellectual disabilities were not educated because they were deemed uneducable. Under Bulgaria’s National Education Act of 2002, the Government undertook to educate these children. MDAC’s complaint was based on the 2005 report of the Bulgarian child protection agency, which found that only 2.8% of the children in HMDCs that were visited were being taught in mainstream primary schools and only 3.4% in special schools. MDAC also claimed that ordinary schools were not properly equipped and that the teachers were not adequately trained to address these children’s needs. As for those children not attending educational institutions outside of the HMDCs, MDAC claimed that HMDCs are not educational institutions and as such, did not grant diplomas. Children without these diplomas are legally prohibited from entering secondary educational institutions. MDAC argued further that the Government cannot claim that it lacked the resources or was gradually implementing certain rights for these children because the Government had not taken inexpensive measures that were available and had used resources that were available for disabled children disproportionately on physically disabled children as opposed to intellectually disabled children.

The Government responded by describing its legislative efforts to provide these children equal access to education and contended that, subject to available resources, it was committed to implementing these safeguards. The Government argued that it was not systematically discriminating against these children because a large number of children who are not intellectually disabled either do not attend school or leave early. The Government further claimed that its education policy, while costly and ongoing, will produce visible results in the long term.

[Adapted from INTERIGHTS summary, with permission]

The Committee held that the State was in violation of Article 17(2) singly and jointly with Article E.

The Committee found that the State had to provide education that was available, accessible, acceptable and adaptable, but hadn’t in regards to accessibility and adaptability. The criterion of accessibility is not met because of the low percentage of these children in mainstream schools and the lack of evidence demonstrating real efforts by the Government to integrate these children into mainstream education. The criterion of adaptability with respect to those children in mainstream schools is not met because the teachers are not sufficiently trained and the education materials inadequate.

The Committee rejected the State’s defense of financial constraints. The Committee noted that when it is exceptionally complex and expensive to protect a right guaranteed under the Charter, the steps taken by the states must meet the following three criteria: a reasonable timeframe, measurable progress and financing consistent with the maximum use of available resources. The State failed to meet these requirements, and therefore violated Article 17(2), because there is no prospect that the Government’s actions would comply with the right within a reasonable time period and inexpensive measures that were available were not being taken.

The Committee found the State violated Article E (non-discrimination) based on the statistics provided by MDAC. The statistics were that 93 per cent of girls and 95 per cent of boys attended primary schools and only 6.2 per cent of intellectually disabled children living in HMDCs attended primary schools or special schools; the differing attendance rate is great enough to demonstrate that Article 17(2) read in conjunction with Article E was violated.

[Adapted from INTERIGHTS summary, with permission]

“47. As to the Government’s argument that the right of children with intellectual disabilities residing in HMDCs to education is being implemented progressively, the Committee is aware of Bulgaria’s financial constraints. It notes however that any progress that has been made has been very slow and mainly concerns the adoption of legislation and policies (or action plans), with little or no implementation. It would have been possible to take some specific steps at no excessive additional cost (for example HMDC directors and the municipal officials to whom HMDCs and primary schools are accountable could have been informed about and given training on the new legislation and action plans). The choices made by the Government resulted in the situation described above (see in particular §§ 43 et 45). Progress is therefore patently insufficient at the current rate and there is no prospect that the situation will be in conformity with article 17§2 within a reasonable time. Consequently, the Committee considers that the measures taken do not fulfil the three criteria referred to above, i.e. a reasonable timeframe, measurable progress and financing consistent with the maximum use of available resources. In view of this situation, the Committee considers that Bulgaria’s financial constraints cannot be used to justify the fact that children with intellectual disabilities in HMDCs cannot enjoy their right to an education.”

“52. The Committee recalls its case law regarding disputes about discrimination in matters covered by the Revised Charter … that the burden of proof should not rest entirely on the complainant, but should be the subject of an appropriate adjustment. …  The Committee therefore relies on the specific data sent to it by the complainant organisation, such as its statistics which show unexplained differences. It is then for the Government to demonstrate that there is no ground for this allegation of discrimination”