Human Rights Issues and Vulnerable Groups [1 ed.] 9781681085760, 9781681085777

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Current and Future Developments in Law (Volume 1) (Human Rights Issues and Vulnerable Groups)

Edited by J. Alberto del Real Alcalà

Department of Criminal Law, Legal Philosophy, Moral Philosophy & Philosophy, Faculty of Law and Social Science, ‘Gregorio Peces-Barba’ Observatory for Human Rights and Democracy, University of Jaén, 23071 Jaén, Spain

Current and Future Developments in Law Volume # 1 Human Rights Issues and Vulnerable Groups Editor: J. Alberto del Real Alcalá ISSN (Online): 2589-0115 ISSN (Print): 2589-0107 ISBN (Online): 978-1-68108-576-0 ISBN (Print): 978-1-68108-577-7 © 2017, Bentham eBooks imprint. Published by Bentham Science Publishers – Sharjah, UAE. All Rights Reserved. 

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CONTENTS DEDICATION PREFACE I .............................................................................................................................................. i PREFACE II ............................................................................................................................................ iii LIST OF CONTRIBUTORS .................................................................................................................. ix PART , HUMAN DIGNITY CHAPTER 1 FUNDAMENTAL RIGHTS AND HUMAN DIGNITY ............................................. )UDQFLVFR-DYLHU$QVXiWHJXL5RLJ 1. PREMISE .................................................................................................................................... 2. HUMAN DIGNITY IN CONTEXT .......................................................................................... 3. THE CONCEPT OF HUMAN DIGNITY ................................................................................ 4. HUMAN DIGNITY AND RIGHTS DISCOURSE .................................................................. 5. CONSEQUENCES AND CHALLENGES ............................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

1 1 2 3 6 8 11 11 11

PART ,, PERSONS WITH DISABILITIES CHAPTER 2 ON CAPACITY AND RIGHTS ................................................................................... 5DIDHOGH$VtV5RLJ 1. INTRODUCTION: DISABILITY AND HUMAN RIGHTS .................................................. 2. ON CAPACITY .......................................................................................................................... 3. A NECESSARY RE-READING OF THE NOTION OF MORAL AND LEGAL CAPACITY ..................................................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

14

CHAPTER 3 DISABILITY AND CONSTITUTION ........................................................................ 5DIDHOGH$VtV5RLJ 1. INTRODUCTION ...................................................................................................................... 2. THE NEW NOTION OF DISABILITY: NEW AND OLD VISIONS .................................. 3. THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES .............. 4. DISABILITY AND THE SPANISH CONSTITUTION OF 1978 .......................................... 5. SOME PROPOSALS .................................................................................................................. CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

29

CHAPTER 4 THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES: A NECESSARY STEP TOWARDS THE UNIVERSALIZATION OF HUMAN RIGHTS ............... -RVp,JQDFLR6RODU&D\yQ 1. THE SHIFT TOWARDS A NEW APPROACH TO DISABILITY ...................................... 2. THE RECEPTION OF THE SOCIAL MODEL OF DISABILITY IN CRPD .................... 2.1. The Openness of the Concept of “Persons with Disabilities” .......................................... 2.2. The Entry of Disability in Human Rights Theory ........................................................... 3. THE GUIDING PRINCIPLES OF CRPD .............................................................................. 3.1. Respect for Dignity, Autonomy and Independence of Persons with Disabilities: The Recognition of their Legal Capacity .......................................................................................

14 19 23 28 28 28

29 30 31 34 36 37 37 37 40 40 44 44 47 50 50

3.2. Non-discrimination .......................................................................................................... 3.3. Full and Effective Participation and Inclusion in Society ............................................... 3.4. Respect for Difference and Acceptance of Persons with Disabilities as Part of Human Diversity and Humanity .......................................................................................................... 3.5. Equality of Opportunity ................................................................................................... 3.6. Accessibility ..................................................................................................................... 3.7. Special Attention to Persons with Disabilities Subject to Multiple forms of Discrimination ......................................................................................................................... 3.7.1. Equality between Men and Women ..................................................................... 3.7.2. Respect for the Evolving Capacities of Children with Disabilities and Respect for the Right of Children with Disabilities to Preserve their Identities ........................ CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ............................................................................................................................... CHAPTER 5 PEOPLE WITH DISABILITIES AND HUMAN RIGHTS IN BRAZIL: EQUALITY OF OPPORTUNITIES AS A MODEL FOR SOCIAL INCLUSION .......................... -XOLR3LQKHLUR)DUR+RPHPGH6LTXHLUDDQG*XVWDYR$QWRQLR3LHUD]]R6DQWRV 1. INTRODUCTION ...................................................................................................................... 2. WHAT DISABILITY MEANS: THREE CONCEPTIONS ................................................... 3. SOCIAL INCLUSION PROMOTION AS DOUBLE OBLIGATION .................................. 4. SOME FINAL REMARKS ........................................................................................................ CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

54 58 58 59 60 61 61 63 65 65 65 68 68 70 73 79 79 79 79

PART ,,, INDIGENOUS PEOPLES CHAPTER 6 ON THE RIGHTS OF INDIGENOUS PEOPLES IN LATIN AMERICA ............. -$OEHUWRGHO5HDO$OFDOi 1. INDIGENOUS NATIONS AND PEOPLES: FROM MARGINALISATION TO PROMINENCE IN THE CONSTITUTION AND THE STATE .............................................. 2. REFOUNDING THE LATIN AMERICAN CONSTITUTIONS IN TERMS OF CULTURAL DIVERSITY ............................................................................................................. 3. THE IMPORTANCE OF CULTURAL DIVERSITY IN DESIGNING THE NEW STATE MODEL IN LATIN AMERICA ..................................................................................... 4. CONCLUSION ........................................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

82 82 87 91 96 97 97 97

PART ,9 WOMEN CHAPTER 7 GENDER EQUITY AND DEVELOPMENT: WOMEN’S RIGHTS ....................... 0DULD2OJD6iQFKH]0DUWtQH] 1. HUMAN RIGHTS AND DEVELOPMENT ............................................................................ 2. WOMEN´S EXCLUSION FROM HUMAN RIGHTS ........................................................... 3. THE FIRST DEMANDS OF WOMEN´S RIGHTS ................................................................ 4. FROM THE RECOGNITION OF THE RIGHTS OF WOMEN TO THEIR REAL FULFILLMENT ............................................................................................................................. 5. WOMEN´S RIGHTS IN GLOBAL PERSPECTIVE ............................................................. 6. URGENCY AND NEED TO BE PROACTIVE IN DEFENDING THE RIGHTS OF WOMEN ..........................................................................................................................................

100 100 102 105 107 109 113

CONFLICT OF INTEREST ......................................................................................................... 115 ACKNOWLEDGEMENTS ........................................................................................................... 115 REFERENCES ............................................................................................................................... 115 CHAPTER 8 CITIZENSHIP VERSUS COLLECTIVISM: THE LEGISLATIVE CONTRIBUTION TO GENDER EQUALITY .................................................................................... -XDQD0DUtD*LO5XL] 1. INTRODUCTION ...................................................................................................................... 2. THE EUROPEAN AND INTERNATIONAL LEGAL AND POLITICAL COMMITMENT TO EFFECTIVE EQUALITY OF CITIZENSHIP ...................................... 3. LEGAL AND REGULATORY MEASURES TO INCORPORATE GENDER IMPACT ASSESSMENT IN PROVISIONS AND PLANS OF PARTICULAR RELEVANCE DRAFTED BY THE GOVERNMENT ........................................................................................ 4. THE REGIONAL COMMITMENT TO GENDER MAINSTREAMING ........................... 5. JUDICIAL RESPONSIBILITY IN IMPLEMENTING THE IEIGS AND EFFECTIVE MOTIVATION ............................................................................................................................... 6. BY WAY OF REFLECTION AND CONCLUSION .............................................................. CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

117 117 120 126 132 136 139 142 142 142

PART 9 VICTIMS OF TERRORISM CHAPTER 9 RIGHT TO THE TRUTH AND VICTIMS OF TERRORISM AS A VULNERABLE GROUP ........................................................................................................................ %HOpQ8UHxD&DUD]R 1. INTRODUCTION ...................................................................................................................... 2. WHAT CONSTUTITES THE RIGHT TO THE TRUTH? ................................................... 3. THE RIGHT TO THE TRUTH AS A FUNDAMENTAL PROCEDURAL RIGHT .......... 4. CONCLUSIONS ......................................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ............................................................................................................................... CHAPTER 10 PSYCHOPATHOLOGICAL CONSEQUENCES OF TERRORISM: THE PREVALENCE OF POST-TRAUMATIC STRESS DISORDER IN VICTIMS OF TERRORIST ATTACKS ................................................................................................................................................ 0DUtD3D]*DUFtD9HUDDQG-HV~V6DQ] 1. INTRODUCTION ...................................................................................................................... 2. POST-TRAUMATIC STRESS DISORDER DERIVED FROM TERRORIST ATTACKS ........................................................................................................................................................... 3. POST-TRAUMATIC STRESS DISORDER AND DEGREE OF EXPOSURE TO TERRORIST ATTACKS .............................................................................................................. 4. POST-TRAUMATIC STRESS DISORDER AND THE PASSING OF TIME AFTER TERRORIST ATTACKS .............................................................................................................. 5. CONCLUSIONS ......................................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

147 147 149 154 159 160 161 161

164 164 166 171 174 176 178 178 178

CHAPTER 11 VICTIMS OF TERRORISM IN SPAIN OVER TWO CENTURIES: THE PATH TO SPECIFIC LEGAL PROTECTION ............................................................................................... 181 $JDWD6HUUDQz 1. INTRODUCTION ...................................................................................................................... 181

2. THE PREVALENCE OF A PUNITIVE APPROACH AND THE ABSENCE OF SPECIFIC PROTECTION FOR VICTIMS OF TERRORISM UP UNTIL THE '80S OF THE 20TH CENTURY .................................................................................................................. 3. A COMPENSATORY APPROACH AND EVOLUTION TOWARDS SPECIFIC PROTECTION FOR VICTIMS OF TERRORISM FROM THE '90S OF THE 20TH CENTURY ....................................................................................................................................... 4. CONCLUSION ........................................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

182 187 194 195 195 195

PART 9, POOR PEOPLE CHAPTER 12 EMPLOYMENT AND POVERTY: THE CASE OF ‘WORKING POOR’ .......... -RVp/XLV5H\3pUH] 1. WHAT ARE WORKING POOR? THE COMPLEXITY OF A SIMPLE CONCEPT ....... 2. RIGHT TO WORK AND WORKING POVERTY ................................................................ 3. POLITICAL RESPONSES TO WORKING POOR ............................................................... 4. CONCLUSION ........................................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ............................................................................................................................... CHAPTER 13 FUNDAMENTAL RIGHTS, NATIONAL CONSTITUTIONS AND THE EUROPEAN TREATIES: SOCIAL RIGHTS VS ECONOMIC RIGHTS ....................................... 6LOYLR*DPELQRDQG-XOLR3LQKHLUR)DUR+RPHPGH6LTXHLUD 1. PRELIMINARY REMARKS .................................................................................................... 2. COMMON CONSTITUTIONAL TRADITIONS, SOCIAL RIGHTS AND EUROPEAN INTEGRATION ............................................................................................................................. 3. SOCIAL RIGHTS AND THE MARKET: PROTECTION OF THE RIGHT TO WORK IN EU LAW, ECJ CASE LAW AND NATIONAL CONSTITUTIONS .................................. 4. CONCLUDING REMARKS: JUDICIAL PROTECTION OF FUNDAMENTAL RIGHTS IN NATIONAL CONSTITUTIONS AND EUROPEAN TREATIES ...................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ............................................................................................................................... CHAPTER 14 RIGHT TO HOUSING: BETWEEN ITS IMPLEMENTATION AND ITS MERE DECLARATION ..................................................................................................................................... %RULV:LOVRQ$ULDV/ySH] 1. INTRODUCTION ...................................................................................................................... 2. RIGHT TO HOUSING .............................................................................................................. 3. ENFORCEABILITY OF THE ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ESCR) AND RIGHT TO HOUSING .......................................................................................... 4. SPECIAL EMPHASIS ON THE RIGHT TO HOUSING RELATED TO THE PRIVATE LAW ................................................................................................................................................. 5. CONCLUSION ........................................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

201 201 205 206 208 209 209 209 211 211 212 216 220 222 222 222 227 227 228 232 235 236 236 236 236

PART 9,, IMPRISONED PERSONS CHAPTER 15 SAFETY AND HUMAN RIGHTS IN SPANISH PRISONS ................................... 240

)HUQDQGR5HYLULHJR3LFyQDQG)DXVWLQR*XGLQ5RGUtJXH]0DJDULxRV 1. INTRODUCTION ...................................................................................................................... 2. CONTROL AND TRANSPARENCY ...................................................................................... 3. VISUAL CONTROL, VIDEO CAMERAS AND PRISONS .................................................. 4. PRISON OVERSIGHT JUDGE AS A JUDGE OF GUARANTEES .................................... 5. TOWARDS A SITUATION OF HIGHER GUARANTEES: SEARCHING FOR GREATER GUARANTEES .......................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

240 242 243 249 251 252 252 252

PART 9,,, CHILDREN CHAPTER 16 THE FORMATION OF IDENTITY OF CHILDREN IN A CONSUMER SOCIETY ................................................................................................................................................. $QD*DEULHOD5DQJH3RQFLRDQG$QGUp)LOLSH3HUHLUDGRV6DQWRV5HLG 1. INTRODUCTION ...................................................................................................................... 2. CONSUMER SOCIETY ............................................................................................................ 3. CONSUMPTION AND IDENTITY ......................................................................................... 4. THE IDENTITY FORMATION OF CHILDREN IN A CONSUMER SOCIETY ............. 5. CONSUMER SOCIETY AND CHILDHOOD IN CONCEIÇÃO DA BARRA/ES ............. 6. CONCLUSION ........................................................................................................................... CONFLICT OF INTEREST ......................................................................................................... ACKNOWLEDGEMENTS ........................................................................................................... REFERENCES ...............................................................................................................................

255 255 256 259 261 264 272 274 274 274

SUBJECT INDEX .................................................................................................................................. 2

DEDICATION For all people who suffer

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PREFACE I The history of human rights in the 20th century can be described as an open process towards non-discrimination, a feature that has been present in what we have so far seen of the 21st century and that will probably remain so for the rest of it. In this respect, and regardless of the presence of other milestones, two key ideas, which correspond to a number of other historical rights processes, have been present and continue to be so. On the one hand is the process of generalisation; and on the other hand, specification. The first of these aims to extend the enjoyment of rights to people and collectives whose rights are not respected; the second aims to justify the granting of specific rights to people and groups. In effect, the historical process of generalisation, at its most basic, meant extending the respecting of rights to individuals and collectives who did not hold them and, in doing so, taking into account the specific circumstances surrounding individuals. As we all know, the historical origin of rights is associated with a social class, the bourgeoisie, and the respect of rights is not, at this time, universal. Rights are fully recognised for individuals who possess a series of characteristics relating to their economic status, gender, etc. Although in the process of positivisation, the first great historical rights process, equality is talked about, it is not about universal equality. On the other hand, this process, the process of generalisation, is characterised by the abandoning of constructions in which the philosophical tone takes precedence, with others being carried out that seek to ensure that rights and liberties are upheld in law in a concrete, not abstract, manner. The attention to the specific situation, the context in which the needs and demands of human beings are situated, is another characteristic of this process, from which the appearance of economic, social and cultural rights can be understood. Ultimately, the generalisation process is thus an attempt to link the discussion on rights with reality. A discussion that considers rights to be natural, that is to say that they belong to all human beings, and a reality that limits the enjoyment of rights to a particular social class, the bourgeoisie. A discussion that constructed a generic, abstract and timeless formula of rights and a reality in which certain categories of human beings do not enjoy these rights and in which needs arise, demanding to be incorporated into the catalogue of rights. A discussion based on defending the natural equality of human beings and a reality susceptible to being described in terms of inequality. As for the process of specification, this entails the recognition of the rights of specific collectives, who find themselves in special situations, thus implying an idea of material equality. N. Bobbio refers to this as “the increasingly marked move towards a subsequent determination of the owners of rights”. Specification has indeed occurred with regards to gender (recognition of women's specific differences compared with men), age (children's rights, rights for the elderly), and certain states of human existence (rights for sick and disabled people, etc.). Both phenomena stem from the principle of equality in its two main dimensions: on the one hand, that which sees equality as non-discrimination, and on the other hand that which lets us talk about equality as a requirement for differentiation (positive differentiation). Equality as non-discrimination means equal treatment of different circumstances or situations which, however, it is believed should be considered irrelevant when it comes to the enjoyment or exercise of certain rights or the application of rules. In relation to rights, it ̀

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implies non-differentiation in terms of entitlement, exercise and guarantees. In any event, this perspective cannot be understood without the other. Equality as a requirement for differentiation (such as positive differentiation), involves the giving different treatment to circumstances and situations that are considered relevant. Within the process of generalisation, it is possible to encounter the use of both of these views of equality. In effect, although it is common to affirm that it is a process in which the idea of formal equality is replaced, or even combined, with that of material equality, we should not overlook the fact that one of the main characteristics of this process is the extension of entitlement to rights to certain individuals or collectives which, in terms of equality, amounts to negative differentiation (non-discrimination). But equally, this process also captures an idea of equality as positive differentiation (requirement for differentiation) through the appearance of social rights and, nowadays, through paying attention to specific situations that people and groups find themselves in. Within the process of specification, the idea of equality is positive differentiation. It involves protecting certain individuals and collectives who are in special situations, by recognising specific rights. Both dimensions of equality appear in the discussion on rights, linked to the idea of universality. In effect, equality and universality are two closely related principles that appear both in the ethical and legal dimension of rights. Within the ethical dimension, the concept of universality shows the existence of a series of characteristics that are present in every human being and so must be considered in an egalitarian manner. In the legal dimension, attaining this idea requires an equal treatment that is not incompatible with the consideration of difference and, therefore, different treatment. In this respect, the theory of rights, in its legal conception yet still conditioned by the moral dimension, opens up the possibility of justified positive differentiation. And with this, it can reject the universality of rights as long as that does not mean rejecting the universality of ethics. In other words, the theory of rights, in its legal dimension, does not demand universality of rights, as long as the universal value of the legal rights they protect continues to be upheld. Although positive differentiation entails leaving universality aside, it demands that the reasons justifying this be coherent with the universality of ethics. So, the issue of assisting vulnerable groups is clearly inscribed within the scope of the phenomena of generalisation and specification, and stems from these two perspectives of equality through the lens of universality. This book refers precisely to human rights and vulnerable groups. Before briefly commenting on its content, it is necessary to clarify that the term vulnerable group is relative. What I mean by the term is that vulnerability often occurs because of situations and contexts and this means, on the one hand, people and groups may be vulnerable at certain moments but not others and, one the other hand, it is very difficult to talk about natural vulnerability. So for example, I have sometimes heard disabled people be referred to as a naturally vulnerable group. However, as defenders of the social model of disability have demonstrated, these people's vulnerability is largely social. Indeed, Rights and Vulnerable Groups (Vol. 1), edited by J. Alberto Real, deals with the issue of the rights of vulnerable groups in a new and comprehensive way, focusing on the main problems faced by the groups that are generically considered vulnerable. On the one hand, we have works that mention the rights of women, one of the main historical exponents of the process of generalisation which, at the time, served to demonstrate the lack

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of justification for using gender as a criterion for differentiation in the enjoyment of rights. From this idea, the use of measures that unfold from both the principle of equality and nondiscrimination and that of positive differentiation gain meaning in the present day. From a theoretical point of view, and as part of a theory of rights, it is possible to defend three key principles in the field of differentiation:

1. A comprehensive theory of rights justifies differentiation that aims to satisfy the basic needs of individuals. 2. A comprehensive theory of rights justifies differentiation that aims to place individuals in identical conditions in the field of moral and political discussion. 3. The enjoyment of rights should be open to all even though differences may be established that, by virtue of the different types of inequality, dealing with the context in which these arise, and taking into account their different distribution criteria, are accepted by the majority of the rational individuals involved. The theory of rights provides a series of parameters from which the social reality can be analyzed. If we focus our attention on the situation of women, I do not think it is too much to say that this is a collective for which, in general, both the requirement for the satisfaction of basic needs and, to a much greater extent, the requirement for equal value or power in public discussion, present undeniable problems. These are two issues that are very closely related and are a consequence of a historical allocation of social roles associated with sex-based differentiation. This historical allocation of roles has been supported by a sexist approach characterised by the consideration of women as inferior beings, as beings who are not capable of performing certain tasks yet are “naturally” gifted in others. The theory of rights must react to this situation and, in this respect, there are three possible paths: prohibiting negative differentiation; justifying positive differentiation; and designing an education system based precisely on its own hypotheses. The prohibition of negative differentiation entails restricting any action that could directly or indirectly result in the non-respect of human rights due to being a woman. It is a path which allows the current reality to be addressed but does not serve to fully tackle this phenomenon. One of its manifestations is criminal punishment, from the understanding of criminal law as an instrument to repress those attitudes whose extreme extent is the non-respect of the legal right to life. In any case, although it is a well-travelled path, it is not a safe one, in the sense that it does not guarantee the disappearance of discrimination. Justifying positive differentiation means allowing measures directed at women that aim to both satisfy their needs (sometimes needs specific to women and sometimes those shared with men but not satisfied for women), as well as include them in fields of political and legal power. In this case, these are policies that tackle the phenomenon in the medium term. It can also involve the use of criminal law, now considered as a preventative instrument, through the specification of criminal acts. In any event, it is a less travelled path than the previous one, yet safer (though not entirely). The design of an education system based precisely on human rights involves raising awareness of the importance of human dignity and the equal value of human rights regardless of their sex, whether at school, in the family, or in the media. Obviously this is a long path, whose fruits are not immediate. In any case it is the safest path. The Convention on the

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Elimination of all forms of Discrimination against Women of 1979 indicated the “need to change attitudes, through educating men and women to accept equal rights”. This human rights education will allow us to do away with this differentiation of power and any type of sexism. The book also looks at immigration and the rights of immigrants. Although immigration is not a recent phenomenon, it is possible to observe how nowadays there are factors affecting how it is dealt with. Immigration has become an important issue for certain developed countries that, on the other hand, have helped to construct the idea of human rights as instruments that limit power. This has started the search for a political approach that deals with this phenomenon and that does not betray a social model dominated by human rights. In this respect, it is important to observe how the term immigrant has become an emotive term. In language we tend to differentiate, controversially to say the least, between foreigner and immigrant. This is a value-based differentiation (there are several studies showing that the perception of foreigners is better than that of immigrants). While the term foreigner marks a difference from nationals, this is even more the case for the term immigrant. Normally, we tend to use this term to refer to a specific group of non-nationals present in our country. We neither normally do this to talk about home-owners and pensioners from northern Europe; nor the people with qualifications who have come here following the flow of capital and are working for large companies, or who have moved to Spain because it benefits them more (language teachers, shop owners, doctors, etc.), rather, we use it to refer to those who flee degrading living conditions. We even use it more to refer to unqualified people within this group. All of this means that in the debate on immigration it is taken as read from the start that immigrants should not have the same rights. Or we even discuss how they should enjoy such rights, taking for granted the idea that not being a national (and being in a certain situation) is a reason with moral weight. The theory of rights, when it appears in the topic of the rights of non-nationals, and therefore immigrants, reveals how it is rooted in two fundamental poles that form the basis of the construction of modern law but that can clash with the purpose of rights: political power and nationality. These are two poles that must be questioned. I believe that the fact of being born in a country, or having acquired its nationality, is not in itself a relevant argument for differentiating negatively (not treating people the same) in terms of enjoyment of human rights, although it could perhaps be so (whilst still respecting such rights) for differentiating positively (recognising other rights). In any case, and with regards to the previous point it seems to me to be a secondary issue, and it is extremely difficult for me to defend actions of positive differentiation based on arguments related to nationality or culture. Regarding power, rights must present real limits on power. For this it is important to increase the power of the international courts (which should recognise the participation of all) with the aim that they contribute to the strengthening of rights, albeit through strengthening the power of the states at the same time. However, this refers to states that are committed to rights, and whose migration policy is underpinned by rights. On this subject I think that the first step is to design policy that recognises rights whilst excluding the national or cultural aspect as far as possible. With this in mind, and from the perspective of recognising rights, it is necessary to start to discuss the recognition of this aspect, not in a negative sense (restriction of rights), but in a positive sense whilst respecting

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the idea of human dignity. All of this requires that the value of solidarity be recovered and its role in the discussion on rights be recalculated. Another of the groups traditionally included when talking about vulnerability is children. The issue of childhood has been a key issue in the field of human rights since the second half of the 20th century. The emergence of international regulations in this regard, supported by doctrinal approaches, and the attention given to the real situations in which children live in certain countries, has made this a current issue, with greater or lesser success, not just in the academic and scientific field but also in the political agenda. Furthermore, it is a question that affects fundamental political and social issues and, ultimately, the social model that we want. There is a certain tendency to include this phenomenon within the process of specification. However, the treatment of the rights of children cannot remain solely within the process of specification; it must also be considered within the process of generalisation. Some will think that this observation is merely an academic detail. However, I do not believe that it is just that. The process of generalisation constitutes the attempt to extend human rights to collectives that do not enjoy them, and this idea may have its place when we are dealing with the issue of children's rights. In effect, the recognition of specific rights is one thing and the generalisation of rights is another. Although we can find some common elements in both phenomena, there is no doubt that the justification for each may be different. And in this sense, by characterising the recognition of children's rights as belonging to the specification process we are saved from having to make a series of reflections on which a theoretical handling of these rights cannot be avoided. Certainly, for many, dealing with the question of childhood in terms of rights from a theoretical point of view is an unnecessary task, given that the important point on this subject (as with anything to do with rights) is the question of guarantee. The problems regarding the concept and foundation of rights tend to be left aside. It is sometimes stated that these issues are impossible to resolve, but there are also those who believe that they have already been resolved (especially when we have a Universal Declaration of Rights). And in any case, there is a certain tendency, particularly in the field of legal doctrine, to ignore these subjects by claiming that they are irrelevant. In this regard, it is common to come across pronouncements stating that the important issue nowadays when dealing with rights is protecting them. However, the process of determining a concept and basis for rights is given great importance, obviously in terms of the manner in which it is interpreted, but also in the solution of problems relating to their effective guarantee, both legal and social, and including in terms of the aspects relating to the catalogue of rights itself. And this importance is very evident when it comes to the rights of children. Not without reason, Neil MacCormick wrote, a while ago now (“Children's Rights: A Test-Case for Theories of Right”) that the question of children's rights is one of those issues that puts the theory of human rights to the test. Indeed, for those of us who work on issues relating to the theory of human rights, the treatment of children's rights presents us with questions that are difficult to resolve, which basically affect the coherent development of the theory itself. The previous reflections on children's rights can also be applied to the analysis of the rights of people with disabilities (the topic of some of the articles in this book). This is a collective which, like children, currently receives special attention (an example of this is the recent passing of the United Nations Convention on the Rights of Persons with Disabilities). On the other hand, the focus on their recognition from a perspective of generalisation, and not so much from one specification, is also significant. Beyond this, it is worth highlighting how a rigorous and serious handling of this issue requires us to adopt a human rights perspective.

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Human Rights Issues and Vulnerable Groups (Vol. 1), also looks into the rights of indigenous peoples. This is surely the topic that is most closely related to the dimension of equality as positive differentiation, and which tackles one of the most important problems regarding the grounds for rights: the moral value of groups or collectives. Like in the previous cases, this is an issue that is receiving a lot of attention in the area of rights declarations, and which equally affects another of their key principles: universality. All of this justifies the attention received. But as well as this, this work contains pieces on other issues that are equally important when looking at the fight against discrimination, such as poverty, and the rights of victims, sexual minorities, linguistic minorities and refugees. In many cases, but especially in the case of refugees, studies and reality confirm how the system of human rights (and in particular their application by states), continues to be contradictory with much room for improvement. I would like to end by thanking and congratulating Professor J. Alberto del Real for his hard work and effort in ensuring this work went ahead.

Rafael de Asís Roig ‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Madrid Spain E-mail: [email protected]

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PREFACE II Current and Future Developments in Law, Volume 1 (Human Rights Issues and Vulnerable Groups) and Volume 2 (The Suffering of Minorities and Human Rights) deal with rights and vulnerable people. It covers a wide range of topics, but all center on people who, upon finding themselves –for different reasons– in a hostile situation that overwhelms them, fall into a position of vulnerability. Vulnerability arises as a consequence of a person's inability to overcome a risk or danger by themselves, due to a disadvantage, deprivation or harm, whether physical, moral, social, economic, political, or family-related. The situations of vulnerability discussed in this book are related to those caused by the moral, family, social, economic or political conditions in which the people, and the groups they belong to, live. Vulnerable people display weakness, fragility and inability to recover from unexpected problems (real or potential). This means that vulnerability is linked to “human suffering”. Because of this, vulnerable people are people who suffer: a) from the potential risk of enduring harm, deprivation or disadvantage that overwhelms them and that the person does not have the capacity to confront on their own; b) from the fact of having already endured such a harm; and c) from the potential risk of continuing to endure it if they do not escape the position of vulnerability in which they find themselves. In fact, human suffering is behind each of the chapters in this book. Suffering is, without a doubt, synonymous with a person's “poor living conditions” and is the opposite of “living well” or well-being. While the human suffering of vulnerable people is a theme that runs throughout the whole book, there is also another thread running through every page: rights, as an instrument through which civil society and the Rule of Law try to compensate for, curb or even eliminate the suffering of these people through the aim of restoring them to a situation of normality. The “rights mechanism” is a useful instrument because it aims to satisfy needs and claims (relating to freedom, equality and human dignity) which, when not satisfied, generate harm, deprivation and disadvantages that prevent people from living in conditions of minimum personal and collective well-being. Both volumes establish a clear relationship between “living well” (well-being) and rights. And, on the other hand, societies that deny basic rights are societies in which the people suffer from “poor living conditions”. Societies that recognize a set of basic rights for the general population and ensure that they are upheld achieve a higher level of well-being (“living well”) and the people enjoy better living conditions in general. Volume 1 and Volume 2 are organized into different types of vulnerable people. In this respect, Volume 1 (Human Rights Issues and Vulnerable Groups) contains 8 groups of vulnerable people, which contain 16 chapters. Part I (Chapter 1) highlights the relationship between rights and human dignity, and is the starting point for all the other chapters. Part II (Chapters 2, 3, 4 and 5) brings together a group of chapters on people with disabilities, to discuss the relationship between this vulnerable position and rights, the universalization of these rights, the Constitution and the social inclusion that these rights are capable of achieving. Part III (Chapter 6) summarizes the examination of cultural rights with regards to the situation of the Bolivian indigenous peoples, as specific examples of groups of highly vulnerable people in Latin America. Part IV (Chapters 7 and 8) takes into account women, who make up more or less half of the world's population and who continue to be subject to serious discrimination, deprivation and disadvantage. Women's rights, equality and gender discrimination make up the content of this Part.

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Part V (Chapters 9, 10 and 11) includes people who have been victims of terrorist attacks as a vulnerable group. The huge amount of human suffering present among this group of people, the harm they continue to suffer after the terrorist acts (such as post- traumatic stress) and the need to find out the truth about the acts during trials for this type of crime all appear in these chapters. Part VI (Chapters 12, 13 and 14) deals with the difficult situation of poor people. Specifically, it deals with the problem of poor workers, the position within the European Treaties of social rights that deal with situations of poverty, and the issue of the right to housing as an effective and fundamental right for escaping poverty. Part VII (Chapter 15) contains another group of very vulnerable and forgotten people: people in prison. This part focuses on which rights are affected when a person is deprived of his liberty. Finally, Part VIII (Chapter 16) takes into account one of the most defenseless groups: children, and the context of the consumer society in which they form their personal identity. Volume 2 (The Rights of Minorities: Cultural Groups, Migrants, Displaced Persons and Sexual Identity) contains 5 groups of vulnerable people (vulnerable minorities), which contain 13 chapters. Part I (Chapters 1, 2 and 3) deals with the petitions and claims for cultural freedom of people and the groups they belong to. It does this by examining the rights (cultural rights) which seek to satisfy these demands for cultural freedom, but also by looking at caselaw instruments which may contribute to making this possible. Part II (Chapters 4, 5 and 6) on the other hand looks at the very serious problem of vulnerability faced by migrants in much of the world, from a human rights perspective. Part III (Chapters 7 and 8) includes a group of vulnerable people whose suffering accompanies huge humanitarian disasters and is often forgotten about: internally displaced people and migrant people. These are very vulnerable people in need of protection, who are the subject of very serious human rights violations, especially when their fragile situation is a consequence of armed conflict. Part IV (Chapter 9) deals with the extremely difficult issue of people who we can group together under the banner of “sexual minorities”, when confronted with the intolerance they sometimes face from the heterosexual majority. The position of vulnerability in which these people often find themselves frequently starts within the family itself, which makes this a high factor of discrimination and breach of basic rights. This situation arises when sexual identities that differ from the heterosexual identity are not accepted. This type of discrimination is very serious when aimed against non-heterosexual adults, but it is even more so when aimed against girls and boys of a young age. Suicide (an indication that a person was no longer able to cope with their suffering) occurs in this type of situation where a person's most private identity is not respected and is attacked at its very core. Finally, Part V (Chapters 10, 11, 12 y 13) analyses the situation of minorities in general, exploring the situation of disadvantage in which they often find themselves, the factors surrounding their political integration, and the more specific issue of national minorities and secession within the Constitutional State today. Of course, the list of groups of vulnerable people included in both volumes is not a definitive list, but an incomplete one. Wherever there is human suffering in the face of hostile situations that overwhelm people, we can find human beings in a vulnerable situation and, as such, in need of help and protection. This is the idea presented on every page of both books.

J. Alberto del Real Alcalá Department of Criminal Law, Legal Philosophy, Moral Philosophy & Philosophy, Faculty of Law and Social Science, ‘Gregorio Peces-Barba’ Observatory for Human Rights and Democracy, University of Jaén, 23071 Jaén, Spain E-mail: [email protected]

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List of Contributors Agata Serranò

Department of Legal Science, Catholic University of Santo Toribio de Mogrovejo, Chiclayo, Perú

Ana Gabriela Rangel Poncio

Law Faculty of Vitória, Espírito Santo, Brazil

André Filipe Pereira dos Santos Reid

Law Faculty of Vitória, Espírito Santo, Brazil

Belén Ureña Carazo

Judge and Researcher, University of Jaén, Jaén, Spain

Boris Wilson Arias López

Constitutional Court of Bolivia, Sucre, Bolivia

Francisco Javier Ansuátegui Roig

‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Madrid, Spain

Faustino Gudin Rodríguez-Magariños

Magistrate, Spain

Fernando Reviriego Picón

Department of Constitutional Law, National University of Distance Education, Madrid, Spain

Gustavo Antonio Pierazzo Santos

Law Faculty of Victória (VSF), Brazil

J. Alberto del Real Alcalá

'HSDUWPHQWRI&ULPLQDO/DZ3KLORVRSK\RI/DZ0RUDO3KLORVRSK\ DQG3KLORVRSK\University of Jaén, Jaén, Spain

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 'HSDUWPHQWRI3HUVRQDOLW\$VVHVVPHQWDQG&OLQLFDO3V\FKRORJ\ &RPSOXWHQVH8QLYHUVLW\RI0DGULG6SDLQ

José Ignacio Solar Cayón

Faculty of Law, University of Cantabria, Santander, Spain

José Luis Rey Pérez

Faculty of Law, Pontifical University of Comillas, Madrid, Spain

Juana María Gil Ruiz

Department of Legal Philosophy, University of Granada, Granada, Spain

Julio Pinheiro Faro Homem de Siqueira Researcher at the Department of Public Law, Federal University of Rio Grande do Norte, Brazil María Olga Sánchez Martínez

Faculty of Law, University of Cantabria, Santander, Spain

María Paz García-Vera

Department of Personality, Assessment and Clinical Psychology, Complutense University of Madrid, Madrid, Spain

Rafael de Asís Roig

‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Madrid, Spain

Silvio Gambino

Faculty of Law, University of Calabria, Consenza, Italy

PART I HUMAN DIGNITY

Current and Future Developments in Law, 2017, Vol. 1, 1-13

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CHAPTER 1

Fundamental Rights and Human Dignity Francisco Javier Ansuátegui Roig* ‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Madrid, Spain Abstract: The connection between rights and the concept of human dignity works, basic but not exclusively, in the scope of founding the rights and in the development of a theory of justice. This paper addresses the difficulties of the concept of dignity and the need to avoid seeing it as an empty formula. The connection with the Kantian autonomy is an essential reference. From there, within the framework of a secular and anthropocentric discourse, are identified some consequences that a particular understanding of the meaning of dignity for the theory of rights has currently, such as those related to animal rights, bioethics, disability rights or the concept of universality of rights.

Keywords: Anthropocentrism, Dignity, Individual, Rights. 1. PREMISE Any discourse on the connection between rights and human dignity necessarily requires a specific rights theory. In this regard, I would like to point out that this reflection is based on a specific concept of rights which, broadly speaking, assumes specific basic aspects of these rights, such as their dual moral and legal dimension and the presence of a certain moral ground, which constitutes the foundations of law [1]. It is precisely in the field of moral ground where human dignity comes into play in the discourse on rights. Certainly, in order to consider the connection between dignity and rights we must look beyond the literal meaning of national and international regulations, in which the following connection is established: “…recognizing that these rights derive from the inherent dignity of the human person...” [2]. In reality, this implies the idea that dignity is the basic axiological reference for rights; the moral dimension Corresponding author Francisco Javier Ansuátegui Roig: ‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Spain; Tel: 0034 91 624 98 34; Fax: 0034 91 624 89 23; E-mail: [email protected] This text comes from a conference given at Giornata di studio “La dignità dell’uomo: testo e contesto” [“Human dignity: text and context”], Dipartamento di Scienze Giuridiche, Università degli Studi di Modena e Reggio Emilia, Modena, 14 de octubre de 2010. This version has received comments from María del Carmen Barranco, Javier Dorado, Roberto M. Jiménez, Patricia Cuenca and Miguel Angel Ramiro, for which I am very thankful.

*

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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which gives them their meaning. Indeed, dignity is especially relevant with reference to rights. It highlights the significance of the moral aspect of rights. In the field of rights, while it is important to address the legal aspect or institutional mechanisms for protection and security, this does not cover their entire scope. Within a specific concept of rights, in which they are understood as the result of the juridification of certain justified moral pretensions, which are powerful enough to reclaim this juridification, it is in the area of the foundation of rights where we can find the moral arguments justifying their legal existence. Contrary to the views of Norberto Bobbio regarding the urgency to approve the Universal Declaration of Human Rights in 1948 [3], an approach to rights which only addresses security mechanisms is insufficient. Primarily, because these mechanisms, while still extremely important, do not cover the entire reality of rights, which is not only legal but also moral. Secondly, because this legal reality acquires significance precisely when it is endorsed and supported by an appealing and justified moral project. For this alone, the need for a strong moral foundation of rights must not be disregarded. It is precisely in this field in which the discourse on human dignity delivers its full potential. In any case, the idea is to go beyond the explicit connection established between dignity and rights through regulatory instruments, demonstrating the difficulties and challenges of this connection. 2. HUMAN DIGNITY IN CONTEXT I will base this reflection on some basic points. Firstly, I would like to highlight some ideas concerning the difficulties of the concept. I will then refer to the issue of the position of human dignity in the discourse on rights. Finally, I will discuss the consequences for the discourse on rights, arising from the supremacy of human dignity. It is clear that in the latter case, referring to the consequences of human dignity for the discourse on rights, everything that can be said is influenced by the specific concept of dignity assumed. Furthermore, we must be aware that a reflection on the requirements of dignity results in a reflection on the most appropriate legal and constitutional design to reflect certain dimensions of moral correctness and of justice. We are therefore addressing the general field of justice theory. If on the one hand, we consider the connection that exists between dignity and human rights, and on the other hand we state that rights currently represent the essence of justice theory, the previous statement is fully justified. Nevertheless, we must also be aware that the principle of dignity is also applied to other contexts which are seemingly foreign (at least from certain perspectives) to moral reflection. I am thinking about the theory of Law, for example. In this respect, at least in democratic legal systems, the principle of dignity arises when we consider the perspective of justice, or

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morality, assumed by the legal system. It is not difficult to find references to this principle in constitutional texts when discussing the moral and political foundations of the system. It is hard to imagine a Constitution that does not include this reference, at least within the context of contemporary democratic Constitutionalism. Examples from article 1 of the Bonn Constitution, from article 10.1 of the Spanish Constitution, from articles 3 and 41 of the Italian Constitution or from article 1 of the European Charter of Fundamental Rights are well known. Thus, this aspect should possibly be determined in the theory of Law when considering the correct meaning of the idea of conceptual separation between Law and morality, or when addressing certain theoretical developments, such as those referring to the inclusivism or materialisation (or re-materialisation) of Law [4]. Furthermore, the theory of legal reasoning must also take into account the consequences arising from the presence of dignity in the System and of the outcome of its consideration as an absolute value or as a principle with a supposedly relative character which is subject to deliberation [5]. From the above we can therefore derive the importance of reflecting upon human dignity for the Philosophy of Law. Nevertheless, within the Spanish academic context, it is noteworthy that, in recent years and with important exceptions [6], legal philosophers have not dedicated much time to analysing this concept, at least compared to other interests. In any case, this could be due to two circumstances. Firstly, that dignity is considered as an axiom, as an essential requirement of a specific moral concept, in this case of rights, and this requirement is assumed without questioning its validity and meaning. Secondly, that there is awareness of the intrinsic complexity of the concept. In any case, the above leads us to an essential aspect of the subject, upon which it is entirely conditioned, and that is the concept itself. 3. THE CONCEPT OF HUMAN DIGNITY My intention is not to provide a definitive concept of dignity, but rather to highlight the complexity of this concept. In this context we can find sceptical theses such as that of Norbert Hoerster who considers the application of the principle of dignity as an “empty formula”, stating that it expresses a value judgement and therefore controversy regarding its application represents controversy between different ethical judgements, immune to rational scientific decisions [7]. Without leaning towards scepticism, I think that it is perfectly justified to say that there are difficulties regarding its content. Ernesto Garzón Valdés has referred to the “true inflation of a term which is easily invoked but difficult to define conceptually” [8]. It is a term whose importance in a specific moral project, that of rights, seems to be inversely proportional to its clarity. In

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any case, all terms which are significantly emotionally charged share this characteristic, and without a doubt the term “dignity” is just that [9]. Besides being emotionally charged, it also has the problems of being vague and open texture, shared with other major concepts that play an important role in moral, political and legal arguments [10]. To the above we can also add the fact that dignity occupies the last place in arguments based on a specific moral proposal, meaning that it can be used as a last resort in the absence of any other arguments [11]. In effect, introducing an argument based on the respect towards the requirements of dignity can often have the effect of turning the discussion in favour of the person using the argument. In any case, I think there is good reason to suggest that appeals for dignity have become an “argumentative topos” which is often used strategically nowadays. We are dealing with a “super argument” or a “mythical argument” which relieves us of the burden of examining the rationalisation of the discourse [12]. This would lead to the disappearance of the argumentative effort: “The widely used strategy of strengthening weak arguments with a principle such as human dignity could be used to explain the equally widespread tendency of not working argumentatively with human dignity step by step, but rather throwing it into the battlefield and leaving it to manage on its own: awaiting the victory of this strong and unbeatable principle over all opponents. Therefore, it would be enough to simply put forward an assertion as an incontrovertible/clear/indisputable consequence of human dignity to believe you have the power to forget about the rest. It is the sense of blame according to which an argument would be used to “kill the discussion”. In effect, the argumentative concept of the discovery of value and right would be mortally wounded” [13]. However, there are other characteristics that influence or hinder our comprehension of what dignity is, or is not. While this concept holds a privileged position in what we could consider as western cultural tradition [14], it has not always been understood in the same way. That does not prevent us from acknowledging that there may be a certain consensus regarding the value of the Kantian contribution contained in Groundwork of the Metaphysic of Morals, in The Metaphysics of Morals and in Critique of Practical Reason: the link between the concept of humanity and dignity, the consideration of the position of autonomy in the foundation of dignity [15] and the assertion that a person cannot be treated as a means but rather as an end. As David Feldman writes: “The right to make one’s own decisions about many aspects of one’s fate, and to contribute to decisions made by others which affect one’s life, can be seen as a mayor contribution to an individual’s dignity, linking the notion to a Kantian perspective on morality” [16].

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At this point I do not want to go over all the vicissitudes of the genesis of the concept [17], but it is important to remember that throughout history there have been several different ways of understanding dignity. On occasion, what could be considered as the social dimension of dignity has been emphasised, associating it with something external to the person, which an individual has according to his social position. In other circumstances, dignity has been considered as an extremely personal attribute, innate to the individual and deeply rooted in his own nature. Based on a theocentric interpretation, this attribute can be identified with a divine gift, while from an anthropocentric point of view, it derives from its central position in the cosmos, or its rational nature. Dignity has been understood as a virtue, as an acquired merit, as an occupation or function, as an intrinsic quality or has been linked to the possession of rights. A distinction can be made between ontological dignity (referring to the value of a person as an individual: so, you are dignified for being a person) and phenomenological dignity (the person is more or less dignified depending on what he does or does not do) [18]. According to a pro-animalist or biocentric ideology, dignity has even been attributed to animals (or at least some animals) or to nature. However, the presence of these difficulties should not be used as an excuse when assuming a certain understanding of dignity; an understanding of dignity that will allow us to connect it to the human rights discourse. In this respect, dignity in connection to rights makes sense in the context of an anthropocentric and secular discourse [19]. I understand that the previous statement implies taking a specific stance, but in reality participating in the moral discourse (and dignity and rights necessarily form part of this discourse) necessarily implies both opting and assuming responsibility for the consequences, in practical terms, arising from the content of these concepts, unless you want to assume the responsibility for developing moral proposals in which there is room for anything. An anthropocentric approach implies assuming a moral concept in which the individual is responsible both for the entitlement of moral pretensions and for the responsibility resulting from individual decisions. Its secular nature implies that dignity does not make sense in the context of discourses which transcend the individual, of a religious nature for example, in which the individual is dignified for being the work of a creator or for being created in his image or likeness. Accepting the secular nature of the discourse on dignity should ensure the possibility of it being acknowledged regardless of religious views, which are eminently personal in nature, strengthening it in pluralistic – or supposedly pluralistic – societies. This does not exclude the fact that there are individuals

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with a religious concept of dignity, which is valid from an individual point of view, and as such it is not necessarily possible to generalise it [20]. Human dignity is characterised from this anthropocentric and secular approach, and above all it is attributed to man by man himself. Human dignity, its contents and requirements, are the result of the self-understanding of an individual, of a certain understanding of what it means to be a person. Here we are faced with a problem, of great philosophical and moral importance, which is “the struggle of humankind to achieve a greater understanding of itself”, the problem of determining the very essence of humankind [21]. Therefore, the affirmation of human dignity implies a certain idea of humanity: dignity is connected to the different characteristics or abilities relating exclusively to human beings. It is precisely these characteristics on which the moral uniqueness of human beings and the assertion of their moral importance are based. We are on the subject of ontological dignity which is attributed to the human being based on his capacity to pass moral judgement, on his capacity to choose freely, on his ability to seek goodness, virtue and happiness, on his capacity to form general concepts and reason, on his capacity to reproduce, communicate and provoke feelings [22]. These characteristics contribute to highlighting the moral importance of the individual and to defining his position in our moral imagination, based on the self-understanding of the person. These capacities are considered essential for the smooth development of life plans, and therefore they must be guaranteed and protected. Without them individual autonomy does not seem possible. These characteristics make up the “rule of the species”, enabling us to identify the capacities necessary for individuals to lead a good life. This implies acknowledging that the rule of the species is not a description, but rather an ethical evaluation: “To establish it we can select aspects, for example, from human life that are so essential from a normative point of view that it would be difficult to consider a life as entirely human if these aspects could not be developed on some level” [23]. We would therefore not run the risk of engaging in some kind of naturalistic fallacy. 4. HUMAN DIGNITY AND RIGHTS DISCOURSE As I pointed out earlier, I want to highlight two basic aspects of the connection between human dignity and rights based on which this connection can be understood: firstly, the position of human dignity in the discourse on rights and certain consequences for the discourse on rights, arising from the supremacy of human dignity. I am aware of the fact that the following panorama is schematic and deserves to be developed further.

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Ernesto Garzón rightly states that “respect towards the principle of human dignity should be taken seriously and it is the basis for all reflections concerning rules of human sociability which claim to possess some moral justification” [24]. Dignity is the basic axiological reference point of the rights system. When talking about the foundation of rights, we must be aware that we are referring to a specific moral project, resulting from the development of reason throughout history. This binomial, reason and history, enables us to understand not only its meaning but also its development, including progress and setbacks, over time. I do not think it is possible to understand the meaning of the moral project of rights without the supremacy of the requirements of individual autonomy and of the free development of the personality. In this regard, a series of staggered consequences result from the affirmation of dignity, including the effective configuration of a rights system. Therefore, taking dignity seriously also implies taking liberty, equality and solidarity seriously. Beyond the different meanings attached to liberty and equality, beyond reflecting upon the public or private nature of solidarity, the foundation of rights leads back to these values as requirements of dignity. Individual autonomy requires liberty on equal terms and an understanding of others in which we can recognise ourselves. In this regard, solidarity is linked to the Kantian idea of humanity [25]. We are therefore dealing with the basic contents upon which the moral foundation of human rights are based and which enable us to understand dignity as a prius of the rights system [26]: “determining the concept and scope not only of human rights but also of a morally justified legal regulation assumes the 'conceptual category' of human dignity” [27]. Therefore, the affirmation of these moral contents goes beyond the field of morality and has a social, political and legal vocation. Here we can observe that developing a social model based on the requirements of dignity (and thus of liberty, equality and solidarity) calls for the implementation of a rights system. The requirements of dignity are ultimately based on rights whose meaning and contents are incomprehensible if not in reference to these requirements. In a sense, and without revisiting Dworkin's thesis of rights as trumps over the majority, arguments which we do not, or should not, give way to, we could attach a certain instrumental significance to rights in relation to dignity. The establishment of a specific rights system, with a correct institutionalisation of forms of entitlement, exercise and guarantee, is regarded as a requirement, as a means to implement the contents of human dignity. This implies maintaining that the fulfilment of rights is the ultimate aim of social organisation, as the contents of dignity can emerge through these rights. Without these contents the individual will have difficulties when independently deciding how he wants to live and what he wants to do with his future.

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This allows us to understand the position of human dignity in connection to the distinction between public and private ethics. While the aim of public ethics is to establish the contexts in which individuals can engage in their personal preferences and life plans, private ethics are made up of behavioural models, happiness strategies or individual virtue models [28]. Therefore, public ethics must pave the way for private ethics and would principally be made up of rights and liberties. Likewise, the connection between human dignity and rights can be understood based on the distinction between two concepts of dignity: the empirical and the inherent [29]. In this sense, the empirical concept of dignity is characterised by variability and mutability: “dignity is a characteristic that is often also signified by its corresponding adjective, dignified; it is, variously, a kind of gravity or decorum or composure or self-respect or self-confidence together with various good qualities that may justify such attitudes (…). Such dignity is a contingent feature of some human beings as against others; it may be occurrently had, gained, or lost; and, depending on the context, it may or may not have a specifically moral bearing” [30]. However, we can only understand the connection between dignity and rights if we consider inherent dignity: dignity “signifies a kind of intrinsic worth that belongs equally to all human beings as such, constituted by certain intrinsically valuable aspects of being human. This is a necessary, not a contingent, feature of all humans; it is permanent and unchanging, not transitory or changeable; and (…), it sets certain limits to how humans may justifiably be treated” [31]. Dignity is the foundation of rights, and not a consequence of these rights; it can be said that human beings have rights because we advocate their dignity. And we therefore demand that they be treated in a certain way. Nevertheless, as stated by Gewith himself, this deserved treatment does not constitute inherent dignity which, as such, is maintained regardless of the treatment received: humiliation violates dignity but does not make it disappear. The person who has been humiliated is still dignified. 5. CONSEQUENCES AND CHALLENGES A specific understanding of dignity such as the one presented here has important consequences with regards to the contents and to the formation of a rights system and, therefore, to a system of social organisation. As can be observed from what is described below, an age-old issue such as reflecting upon human dignity influences the contemporary development of rights and their future challenges. Not only considering the foundation of rights, but also in terms of effectiveness. I would like to quickly refer to some other aspects.

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a. The area in which the anthropocentric discourse possibly receives the greatest response presently is the area of animal rights, or certain animals, and rights of nature, based on the expansion of dignity to non-human fields. In this sense, I think that theories related to environmentalism currently represent a good setting in which to test, and even review, if necessary, basic aspects of the theory of rights and their moral foundation. An understanding of dignity centred on human beings and their place in the foundation of rights does not imply that we are ignorant to the importance of our decisions and our behaviour with respect to animals or nature, although that does not mean that human beings share the importance of the moral discourse with other living beings or with other dimensions of nature. I think that the different approaches in this respect can be summarised in the following possibilities [32]: firstly, a discourse could be developed in which animals become part of the heart of ethics and, by extension, of the discourse on rights, in the same conditions and with the same requirements as human beings; secondly, animals could be given moral consideration, but to a different degree compared to human beings; and thirdly, animals could be totally excluded from our moral consideration. Based on the description of the meaning of dignity that we have developed here, I think the most appropriate option would be the second one, which can be identified with “moderate anthropocentrism” [33], as soon as we can consider animals as moral patients rather than as moral agents, which is reserved for human beings. Individuals would be the moral agents, and the question is to respect all other living beings, but not because they have their own moral goals or purposes [34], but because they are recipients of the moral action [35]. b. Secondly, I would not be saying anything new if I affirm that bioethics and its progress is strongly influenced by the shared concept of human dignity. I think this issue is particularly important because it currently represents the setting for agreements and disagreements, or, if you prefer, the battlefield regarding basic aspects of the theory and practice of rights such as the functionality of individual morals in the context of collective (democratic) decisions, the value attributed to individual autonomy and to personal decisions regarding the value of life and regarding the consideration that life deserves to be lived, due to its specific conditions, the discourse on quality and the sanctity of life and the distinction between human dignity and dignified human life. In any case, I will simply point out that the value of individual autonomy and the prominence of personal decisions when establishing moral preferences and forming life plans directly and greatly influences our vision of the role played by rights in this field. c. I previously referred to the “rule of the species” within which we can identify dimensions which should be further examined in order to develop autonomy.

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An incorrect understanding of these characteristics could lead us to the conclusion that an individual lacking the capacity to pass moral judgement, for example, does not meet the requirements necessary for us to affirm his dignity. We would therefore reach the absurd conclusion that people with certain types of disability have reduced dignity. To avoid this conclusion we can adopt at least two strategies: Firstly, according to Feldman, it is possible to distinguish between two aspects of dignity: the subjective and the objective. The first, subjective, “concerned with one’s sense of self-worth, which is usually associated with forms of behaviour which communicate that sense to others”; the second, objective, “concerned with the state’s and other people’s attitudes to an individual or group, usually in the light of social norms or expectations” [36]. Likewise, the lack of capacity to develop subjective aspects of dignity does not exclude the need for the requirements of objective dignity. Secondly, a correct understanding of these characteristics occurs when we interpret them in potential terms and not in factual or current terms, in relation to human beings and not to the specific individual [37]. This approach enables us to introduce the discourse on human dignity in the field of the rights of disabled people which, in my opinion, is one of the settings in which the discourse on social justice in our society is defined. d. As we have already observed, interpreting the concept of dignity is problematic. I think that this directly influences the discourse on the universality of rights, which in my opinion is an issue which currently deserves further theoretical efforts. Our approach to the notion of universality of rights can focus on the legal profiles of rights or on their moral dimensions. So, we can state that rights are universal from the legal and / or moral point of view. On this occasion I will not dwell on the difficulties of affirming the legal universality of rights. On the contrary, I would like to point out that moral universality necessarily implies the identification of a common and shared foundation of rights, regardless of local ideological, philosophical or religious (in short, cultural) views. Understandably, in this sense the greater the diversity and plurality in the world, the greater the challenge. A debate regarding the (moral) universality of rights is also a debate regarding the values on which rights are based [38]. Therefore, the same can be said for the contents of human dignity. In this sense, the moral and political challenge is knowing if we are willing to renounce, or qualify, a concept of dignity in which the absolute value of the individual, denying its instrumentalisation and demanding that the conditions necessary for the free development of the personality become a reality, do not represent the necessary essence of this concept.

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CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

See De Asís R. Sobre el concepto y el fundamento de los derechos: una aproximación dualista. Madrid: Dykinson 2001. Before, Peces-Barba G (with the collaboration of Asís R, Fernández Liesa C, Llamas A). Curso de Derechos Fundamentales. Teoría General. Madrid: Carlos III University of Madrid and BOE 1995.

[2]

The text is from the Preamble of the International Covenant on Civil and Political Rights and from the International Covenant on Economic, Social and Cultural Rights (1966).

[3]

See Bobbio N. Sobre el fundamento de los derechos del hombre. In: ID. El tiempo de los derechos. Transl. by De Asís R. Madrid: Sistema 1991: p. 61.

[4]

See Habermas J. Facticidad y validez. Sobre el derecho y el Estado democrático de derecho en términos de teoría del discurso. Introd. and transl. by Jiménez Redondo M. Madrid: Trotta 1998; p. 545; La Torre M. Derecho y conceptos de Derecho. Tendencias evolutivas desde una perspectiva europea. Revista del Centro de Estudios Constitucionales 1993; 16: 70; Zagrebelsky G. Intorno alla legge. Il diritto come dimensione del vivere comune. Torino: Einaudi 2009; pp. 132-134.

[5]

See Luther J. Razonabilidad y dignidad humana. Revista Europea de Derecho Constitucional 2007 January-June; 7: 295-326.

[6]

For example, Peces-Barba G. La dignidad de la persona desde la Filosofía del Derecho. Madrid: Dykinson 2002; Perez Triviño JL. De la dignidad humana y otras cuestiones jurídico-morales. México DF: Fontamara 2007; Fernandez Garcia E. Dignidad humana y ciudadanía cosmopolita. Madrid: Dykinson 2001; De Miguel Beriain I. Consideraciones sobre el concepto de dignidad humana. Anuario de Filosofía del Derecho 2004; 21: 187-212; Campoy Cervera I. Una revisión de la idea de dignidad humana y de los valores de libertad, igualdad y solidaridad en relación con la fundamentación de los derechos. Anuario de Filosofía del Derecho 2004; 21: 143-166; Fernandez Garcia E. Dignidad humana y ciudadanía cosmopolita. Madrid: Dykinson 2001; pp. 17-28.

[7]

See Hoerster N. Acerca del significado del principio de dignidad humana. In: ID. En defensa del positivismo jurídico. Transl. by Seña JM. Rev. by Garzón Valdés E, Zimmerling R. Barcelona: Gedisa, 1992; pp. 91.

[8]

Garzon Valdes E. ¿Cuál es la relevancia moral del concepto de dignidad humana? In: Bulygin, E. El positivismo jurídico. México DF: Fontamara 2006; p. 58.

[9]

See Dworkin R. Justice for Hedgehogs. Cambridge: Harvard University Press 2011; p. 204.

[10]

See Perez Triviño JL. El Estatut y los abusos de la dignidad. Cuadernos de Derecho Público 2007; 32: 114-119.

[11]

See De Miguel Beriain I. Consideraciones sobre el concepto de dignidad humana. Anuario de Filosofía del Derecho 2004; 21: 188.

[12]

See Vincenti U. Diritti e dignità umana. Bari: Laterza 2009; pp. 107-108.

[13]

Hassemer W. Argomentazione con concetti fondamentali. L’esempio della dignità umana. Transl. by Siciliano, D. Ars Interpretandi. 2005; 10: 131.

[14]

Regarding the possibility of identifying elements, outside of western culture, enabling the promotion of human dignity using instruments other than rights, see. Glenn HP. Tradizioni giurudiche nel mondo.

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La sostenibiità della differenza. Trad. it. A cura di Ferlito S. Bologna: Il Mulino 2010; pp. 589. [15]

In this respect, it is worth noting the complex relationship between the idea of autonomy and the concept of dignity. Ronald Dworkin has defined the idea of dignity based on the joint consideration of two principles: “self-respect” and “authenticity”. “Self-respect” implies that each person must take his life seriously: “he must accept that is a matter of importance that his life be a successful performance rather than a wasted opportunity”. Furthermore, the concept of “authenticity” implies responsibility: “Each person has a special, personal responsibility for identifying what counts as success in his own life; he has a personal responsibility to create that life through a coherent narrative or style that he himself endorses”, Dworkin R. Justice for Hedgehogs. cit., pp. 203-204. From this perspective Dworkin establishes differences between authenticity and autonomy: “Living well means not just designing a life, as if any design would do, but designing it in response to a judgement of ethical value. Authenticity is damaged when a person is made to accept someone else’s judgement in place of his own about the values or goals his life should display” (p. 212). Moreover, preserving dignity has sometimes required limiting individual autonomy. A landmark case in this respect is that of the French Council of State in relation to “lancer des nains” [dwarf-tossing] in a Judgement on 27/10/1995.

[16]

Feldman D. Human Dignity as a Legal Value-Part I, Public Law 1999; p. 685.

[17]

See Peces-Barba G. La dignidad de la persona desde la Filosofía del Derecho. cit., pp. 21-62; Vincenti U. Diritti e dignità umana. cit., pp. 7-90; on origins, see Pele A. La dignidad humana. Sus orígenes en el pensamiento clásico. Madrid: Dykinson 2010.

[18]

See De Miguel Beriain I. Consideraciones sobre el concepto de dignidad humana. cit.

[19]

See Peces-Barba G. La dignidad de la persona desde la Filosofía del Derecho. cit.

[20]

Regarding the need for a fundamental element of dignity, which transcends it and has a religious character, see Becchi, P. La dignità unama nella società post-secolare. Rivista Internazionale di Filosofia del Diritto 2010; 87(4): 518: “…la dignità ha bisogno di nutrirsi di una sostanza que non riesce a produrre da sé. Questo nutrimento lo si può ritrovare in quel gran serbatoio di senso che la religione, nonostante il suo annunciaato tramonto, continua ad essere. È dunque, in ultima istanza, il richiamo a qualcosa di superiore all’uomo stesso a fondaare la sua dignità. È l’”immagine di Dio” che è l’uomo, la sua “figliolanza divina” a tradursi in quel brivido di fronte all’intangibile che dovrebbe trattenerci dal compiere l’ultimo passo versso la nostra nichilistica autodistruzione” [“...dignity needs nurturing from a substance that it is not able to produce itself. This nourishment can be found in the great repository of sense which, despite its announced decline, is still religion. For that matter, ultimately, it is the lure of something superior to man, laying the foundation to his dignity. Man is the “image of God”, his “divine offspring”, which results in the thrill of the intangible which we have to repress to undertake the last step towards our nihilistic self-destruction”].

[21]

See De Koninck TH. De la dignidad humana. Transl. by Venegas M. Madrid: Dykinson 2006; pp. 4358.

[22]

See Peces-Barba G. La dignidad de la persona desde la Filosofía del Derecho. cit.

[23]

Cortina A. Las fronteras de la persona. El valor de los animales, la dignidad de los humanos. Madrid: Taurus 2009; p. 158.

[24]

Garzon Valdes E. ¿Cuál es la relevancia moral del concepto de dignidad humana? cit., p. 58.

[25]

See Kant I. Fundamentación de la metafísica de las costumbres. Transl. by García Morente M. Madrid: Sistema 2003; p. 69.

[26]

See Peces-Barba G. La dignidad de la persona desde la Filosofía del Derecho. cit., p. 64.

[27]

Garzon Valdes E. ¿Cuál es la relevancia moral del concepto de dignidad humana? cit., p. 58.

[28]

See Peces-Barba G., Etica, Poder y Derecho. Reflexiones ante el fin de siglo. Madrid: CEC 1995.

[29]

See Gewirth A. Human Dignity as the Basis of Rights. In: Meyer MJ, Parent WA, Eds. The Constitution of Rights. Human Dignity and American Values. Cornell University Press 1992; pp. 1113. The distinction between the empirical and the inherent concept of dignity is parallel to that of

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relative and absolute dignity (see Perez Triviño JL. El Estatut y los abusos de la dignidad. cit., pp. 122-124. [30]

Gewirth A. Human Dignity as the Basis of Rights. cit., p. 12.

[31]

Ibídem.

[32]

See Cortina A. Las fronteras de la persona. El valor de los animales, la dignidad de los humanos. Madrid: Taurus 2009; p. 223.

[33]

See Lopez de la Vieja MT. Derechos de los animales, deberes de los humanos. Isegoria 2005; 32: 157173.

[34]

See Riechmann J. Un mundo vulnerable. Ensayos sobre ecología, ética y tecnociencia. Madrid: Los libros de la Catarata 2005; p. 26.

[35]

I have previously addressed this issue in Ansuategui Roig FJ. Derechos humanos y medio ambiente: ¿Razones para la reelaboración del discurso moral? In: Rey Pérez JL, Rodríguez Palop ME, Campoy Cervera I. Desafíos actuales a los derechos humanos: el derecho al medio ambiente y sus implicaciones. Madrid: Dykinson 2010; pp. 13-32.

[36]

Feldman D. Human Dignity as a Legal Value-Part I. cit., p. 686.

[37]

See De Asis Roig R. La incursión de la discapacidad en la teoría de los derechos: posibilidad, educación, Derecho y poder. In: Campoy Cervera I, Ed. Los derechos de las personas con discapacidad: perspectivas sociales, políticas, jurídicas y filosóficas. Madrid: Bartolomé de las Casas Institute of Human Rights of the Carlos III University of Madrid-Dykinson 2004; pp. 59-73.

[38]

See Ansuategui Roig FJ. Derechos humanos: entre la universalidad y la diversidad. In: Ruiz Vieytez EJ, Urrutia Asua G, Eds. Derechos humanos en contextos multiculturales. ¿Acomodo de derechos o derechos de acomodo? Deusto: Padre Arrupe Institute of Human Rights, Deusto University-Provincial Council of Gipuzkoa 2010; pp. 23-37.

PART II PERSONS WITH DISABILITIES

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CHAPTER 2

On Capacity and Rights Rafael de Asís Roig* ‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Spain Abstract: The idea of capacity is one of the main references of the ethical and legal discourse, and is used to define human beings as persons. The idea of the subject or moral agent, the subject of law, the notion of human dignity and the notion of the self in which both are founded, is based on the idea of capacity. The Convention on the Rights of Persons with Disabilities, approved on December 13, 2006 is a breaking point in the history of the treatment of disability, which now must be seen from the view of human rights. Thus, incorporating this regulatory instrument to our legal system requires a series of reforms, some of them of great importance. The Convention recognizes that persons with disabilities enjoy legal capacity on an equal basis, which implies a fundamental change in the legal treatment of disability. This is a change that can have very important consequences. But this requires changing and rethinking some assumptions, concepts and institutions that exceed the legal field. Indeed, some of these changes go beyond the legal projecting onto the contemporary ethical discourse.

Keywords: Capacity, Disability, Human rights, Non-discrimination. 1. INTRODUCTION: DISABILITY AND HUMAN RIGHTS The question about the subject of rights, a traditional one in the history of law, has gained momentum to this day in the reflection on human rights. Here, the studies on citizenship and non-discrimination, on collective subjects or on the position of certain groups of persons before the law, have elicited some challenges to the classical approach on that concept. A good example of this was the reflection on the idea of capacity, mainly focused on the rights of women and children in a first wave, and in a second wave on the rights of persons with disabilities. There has been a copious doctrinal production related to disability, which has been accompanied by a parallel legislative activity. This adds to the birth of an important social movement for the recognition of the rights of persons with disabilities. Corresponding author Rafael de Asís Roig: ‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Spain; Tel: 0034 639403332; Fax: 0034 91 624 89 23; Email: [email protected] A translation by P. Rodriguez del Pozo y Frutos Miranda, translators of “Sobre capacidad y derechos”, in Perspectivas actuales de los sujetos de Derecho, Dykinson, Madrid 2012, pp. 37-56. ISBN: 9788490310090. *

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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This way, disability has been brought --not without effort-- closer to the discourse of human rights. This closeness has been produced thanks to the adoption of two new views on disability, which can be called the social model and the model of diversity. The social model of disability can be described through the following postulates: a) The technically correct way to approach disability from a legislative point of view is that of the human rights doctrine; b) Disability has, in the majority of cases, a social origin, and thus the measures oriented to satisfy the rights of people with disabilities must target the society at large; c) Disability as a situation in which persons are or could be and there is no individual feature; d) The legal policy in the sphere of the rights of persons with disability must belong to the orbit of equality and non-discrimination, and within this, in the orbit of the universalization of rights. This last postulate has two ramifications that need to be highlighted. On the one hand, it assumes that the basic tools for the satisfaction of the rights of persons with disabilities must be based on the two classical projections of equality, this is, positive and negative differentiation, generalizing and giving effectiveness to these persons’ human rights. On the other hand, it assumes that the discourse of the rights of persons with disabilities is predominantly centered on situations, not on identities; the rights of persons with disability are, in general terms, the same rights of everybody else and thus its justification does not respond to individual features or to the identity of a group. In the last years, we have started to talk about the model of diversity within the discourse of the rights of persons with disability. This term, promoted by the movements for independent life, has been useful to identify a discourse that appeals to the value of diversity represented by the persons with disability. The existence of persons with disability is, in this model, an example of human diversity, which constitutes an enriching factor for societies. This model has two projections. A liberal one, mostly disseminated by the movement for independent life; and a more communal one, developed by the deaf community. The model of diversity defended by the movements for independent life praises the social value of persons with disability, highlighting that achieving dignity or, what is the same, developing personal life plans is a right to which every person is entitled. To this end, the persons with disability must be autonomous and

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independent. This requires the elimination of barriers either in general or at the individual level by providing each person with the resources that allow for the exercise of their autonomy [1]. The model fostered by the deaf community also praises the value of persons with disability, but they do it by considering themselves as a cultural group with their own values which must be protected, guaranteed and promoted by the society at large. In this sense, beyond the removal of barriers, they support that it is necessary to protect the features that define the group and to elaborate policies that allow for its development and permanence through time as a group. At any rate, it is not possible to deny that the very social model uses a notion of disability that has, although in minimal doses, some identity-linked notions or, if preferred, centered on the persons' features. On the other hand, it should not be overlooked that that identity positions do not have to necessarily leave aside the situation issue. It is even possible to maintain that one of the challenges faced by the notion of disability from the view of human rights is, precisely, to learn how to conciliate the identity and the situational notions; this is to learn how to conciliate the universal and at the same time the particular discourse [2]. This is an issue generally present in the human rights discourse. Within this, the opposition between universal and particular arguments is a fact that translates into doctrinal disputes of the past and of our days. For example, in the reflection on the concept and foundation of rights, or in the reflection on the justification --or not-of collective rights [3]. As pointed out before, bringing the problems of disability to the world of human rights has happened in the midst of difficulties that persist even today. Those difficulties stem from the way societies face disability, from the very discourse of rights and even from the persons with disabilities or their representatives. It is common to find a certain fear among persons with disability about enjoying equal rights, since that is interpreted as the chance of losing some kind of protection. And that fear increases among their families and representatives, some of whom, moved perhaps by a zealous paternalism, consider that the discourse of rights should not be projected onto that sphere. But the difficulties are much more explicit if we look at how the majority in our society considers disability: a manner closely linked to the so-called medical-rehabilitative model. In this model, the causes of disability are scientific (disability is the result of a physical, psychical or sensitive limitation). The persons with disabilities are considered useful contributors to society unless only to the extent that they are rehabilitated. In this vision, the main goal is to normalize people with disability to integrate them in society. This way, disability is a problem of the person, directly

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caused by disease, accident or other health condition, which requires personalized medical care. Treating disability is thus aimed at achieving a cure or a better adaption of the person or a change in his or her behavior. This way, from the legal point of view, disability is approached exclusively within the law of medical care and social security, or as part of the civil law related to legal competence and guardianship, but not from a human rights standpoint. Yet, despite all these difficulties, one can maintain today that we have succeeded in bringing the issue of disability to the work of rights, most particularly since the approval of the International Convention on the Rights of Persons with Disabilities. There is no doubt that the Convention, approved on December 13, 2006 is a breaking point in the history of the treatment of disability, which now must be seen from the view of human rights. This view results in considering the persons with disabilities, as everybody else, subjects of rights and not objects of charitable or welfare policies. It implies, in addition, understanding that the social disadvantages suffered by the persons with disabilities must be eliminated because they represent true examples of discrimination and human rights violation. Although the focus of human rights was already present in contemporary philosophy, especially since the emergence of the social model of disability, with the Convention disability is definitely integrated into the legal history of rights. The treatment of the rights of persons with disabilities has become part of one of the great historical processes that allow to account for the evolution of human rights: the process of generalization. This is because, in reality, the Convention does not invent new rights, but extends rights, generalizes rights to persons with disabilities, paying attention to the situation and not the features that identify that group. Under Spanish law, the evolution of the treatment of disability had gotten closer to the social model even before the adoption of the Convention. Proof of this is the Law 51/2003 on Equal Opportunities, Non-Discrimination and Universal Accessibility for Persons with Disabilities, and a series of rules that implement that law. In this sense, the Convention actually comes to ratify and strengthen the trend towards a social approach, stressing, in any case, the need to adopt a distinct human rights perspective. As noted above, the Convention does not add new rights to those already present in the Spanish legal system. But what it actually does is to take definitive steps to incorporate the issue of disability in the field of human rights. In addition, under the provisions of Article 10(2) of the Constitution, which requires interpreting the

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rights in our Constitution in accordance with international treaties and declarations on human rights, these rights must now be addressed taking into account the situation of people with disabilities as dealt with in the Convention. Thus, incorporating this regulatory instrument to our legal system requires a series of reforms, some of them of great importance. This, as has been happening in the contemporary history of the treatment of disability, and as it is also stressed by the Convention, anticipates that the participation of people with disabilities and organizations linked to them will be essential in this process. Some steps in this direction have already been taken. Perhaps the most significant is the adoption of the Law 26/2011 of 1 August, which regulates the adaptation of the Spanish legal system to the International Convention of the Rights of Persons with Disabilities. In any case the still open main challenges posed by the Convention are three: the regulation of the right to the use of sign language, the right to independent living and universal legal capacity. The Convention does not directly refer to the right to use, knowledge and learning sign language, although this can be construed from the examination of its provisions. In any case, it regards the right to recognition and support of sign language in Article 30(4) thereof. The justification provided by the Convention is the relevance of sign language and its use is twofold. On the one hand as a necessary instrument for the satisfaction of other rights (Article 24(3)), on the other as cultural and identity feature of the deaf. Thus, Article 24 speaks of the linguistic identity of the deaf and Article 30 of the deaf culture. The Convention stresses the importance of sign language, including it as one of the possible languages, linked to a linguistic community justified by its relevance for the enjoyment of rights. In this sense, the sign language is a tool just as it can be the measures of support for oral communication, defending the freedom of choice. This implies that the state should recognize and promote this language, facilitating its learning and training general interpreters and guides. Meanwhile, the educational model that seems to advocate the Convention is inclusive, defending the existence of interpreters in this area. In Article 19 of the Convention, entitled “right to live independently and be included in the Community”, it is recognized the “equal right of all persons with disabilities to live in the community”. The mentioned provision puts in place measures to promote the independence of people with disabilities. This right, under the Convention, implies, on the one hand, the choice of place of residence on an equal footing with other citizens (where to live and with whom, untied to a particular way of life) and, secondly, access to general and specific services (including domiciliary, residential and personal care). Furthermore, it is

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noteworthy that the Convention links the right to independent living to the right to be included in the community. It is through these keys how we should interpret the right to live independently. Thus, this right should protect on an equal footing with the rest of the people, the freedom of choice (with the necessary support) of where, with whom and how to live, and should guarantee personal care, household assistance, institutional and health support. The right holder must have access to the facility or service freely chosen by him or her, which best enhances his or her autonomy and social inclusion, in line with the right holder’s personal situation. The issue of the legal capacity of persons with disabilities was the most contentious issue in the negotiations. Proof of this is the fact that in one of the sessions (in the eighth) the Convention was adopted with a footnote on page article on this subject (12) which read: “In Arabic, Chinese and Russian, the expression 'legal capacity' refers to the 'legal capacity for rights' not the 'capacity to act'. Finally, by means of Article 12, the Convention recognizes that persons with disabilities enjoy legal capacity on an equal basis, which implies a fundamental change in the legal treatment of disability. This is a change that can have very important consequences. But this requires changing and rethinking some assumptions, concepts and institutions that exceed the legal field. Indeed, some of these changes go beyond the legal projecting onto the contemporary ethical discourse. 2. ON CAPACITY The idea of capacity is one of the main references of the ethical and legal discourse, and is used to define human beings as persons. The idea of the subject or moral agent, the subject of law, the notion of human dignity and the notion of the self in which both are founded, is based on the idea of capacity. Let's take a look at the matter briefly. Let’s begin with a description of the moral agent. The ethical discourse is traditionally understood as a scenario in which autonomous and independent subjects, endowed with ability to reason and choose, set their moral standards or contribute to the establishment of social morality standards. The actors of this discourse are those that exceed a not always explicit standard of rationality, i.e. people with capacity to act. Those who do not possess the required rationality, those with reasoning disabilities (either temporary or permanent) are not considered as actors of the discourse.

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A good example of this are the children, on the one hand, and people with mental or intellectual disabilities, on the other. Certainly, the role and conception of each other is very different, if only because the latter are often considered as sick and because the view of disability is a sad and pessimistic view vis-à-vis the view of cheerful and promising children. And this will bring along that the treatment of any issues that affect them have different starting points which, irremediably condition that treatment and most likely the conclusions that are reached. In any case, and as for what matters here, those individuals that do not exceed the rationality standard, as stated above are not subject but object of discourse and their moral horizon is pending on the decisions of the abled. And this has caused that the treatment of these people is a matter of solidarity and not necessarily a question of rights. Only recently it is possible to speak of a change that is clearly perceived in the field of the treatment of children and that begins to be perceived, much more timidly in the treatment of people with disabilities, consisting of adopting a human rights approach. This has certainly contributed to an enormous literature on both issues and to the adoption of the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. However, as noted above, the change in relation to people with disabilities is still very timid and faces both the way in which society perceives these situations as well as the manner in which the law addresses them. Let's see how the idea of the subject of rights is set. The gateway to the legal discourse is the recognition of capacity. Indeed, in order to have recognized rights and duties one needs to have legal capacity. This is generally presumed as for being a person and having a personality. The concept of the person is related to the human being. This is, both from a biological and philosophical standpoints, a controversial concept. The personality is usually understood as the suitability to be a person, which implies meeting certain conditions, moreover, biological and philosophical conditions established by the law. For example, articles 29 and 30 of the Spanish Civil Code state that birth determines personality, considering such the born fetus with human figure who lives detached from the mother for at least 24 hours. Beyond reasonable interpretation of what this fetus with human figure notion means, it is important to note from the beginning that in determining personality two traits are required by the law: the human figure (in the sense that human beings have a predetermined figure) and independence (in the sense that the human being is a being who can live independently). Once the requirements for having a personality have been met, the law tends to differentiate between legal capacity and capacity to act. The first, as just noted, is attached to the consideration as a person (or better, personality); the second, by contrast, involves having another set of features among which we can find the

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ability to make conscious, free and responsible actions. The absence or decrease of this capacity involves a limitation in the exercise of rights and, depending on the grade, the designation of a person who replaces or supports the person in question. Under Spanish law, the limitations on the capacity to act have to do with age and incapacitation. The latter, which is usually regarded as a civil state, is necessarily a result of a court order based on the provisions of Article 200 of the Civil Code: “Causes of disability are disease or persistent deficiencies in physical or psychological nature that they impede the person govern itself”. And it is usually understood that a person cannot govern itself when it adopts decisions and takes actions socially deemed as harmful or inconvenient to him or herself. Limiting the capacity to act, this is incapacitation may involve the appointment of a guardian or legal representative of the disabled who substitutes him or her in most legal acts. The incapacitation system established by the Spanish legislation (Law 13/83 of October 24) is a flexible system that leaves to the judge the measurement of capacity according to each subject´s degree of discernment of and determining the acts in which the person needs assistance. However, as is known, practical implementation has led to establishing two degrees of disability, absolutely involved in custody and deprived of legal capacity in all areas to the affected, and partially or relatively involved in guardianship and assistance to act in all areas [4]. In any case, it should be noted that, as pointed by Francisco Bariffi, substituting the will of persons in the legal context does not exclusively occur in the field of disability. It also happens, for example, when a power of attorney is granted or in the case of disappearance of a person. However, in both cases there are fundamental differences with the process carried out in the field of disability. Indeed, the first case is based on the autonomy and capacity of the person and the second is based on the situation. In this sense, both in the legal and ethical discourses, ability and disability are conditioned by the possession of a number of personal traits. This way of conditioning the active participation in such discourses leaves aside other possible criteria and may be questioned due to its excessive abstraction and general nature. The person declared legally incapacitated is so because of his or her identifiable features, and not because social habits, structures or situations (as it is clear in the Civil Code, article 200, or the article 25 of the Criminal Code, which states: “To the effects of this Code, every person who suffers from a persistent disease that prevents him or her from govern his or her own person or properties, either

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declared incapacitated or not by the courts, is considered incapacitated”). In addition, the person declared incapacitated is, in many cases, object and not subject of the process, as it is stated by article 759 of the civil procedural law, which states: “In the processes of incapacitation, the court will hear the next of kin of the presumed incapacitated and will examine the person by himself, in addition to the expert reports in relation to the request for incapacitation (...), no person will be declared incapacitated without previous medical report”. However, it must be said that sometimes, the ability and disability are more reflective of a situation and not an issue that we could call identity. Indeed, disability and ability can sometimes occur due to circumstances, structures and social conditions. This is precisely what it says, in the treatment of disability, the social model [5]. According to the social model, as indicated at the beginning, there are situations in which disability is a result of society and not the person. Certainly, the social model has permitted many of the contemporary legal regulations of disability. However, it is not yet present in some matters of great importance, among which, as just mentioned, those having to do with the main actors of generic ethical and legal discourses. Nor can it be stated the presence of the social model of disability in the context of society at large where disability is understood as a feature of a group that suffers and endures it. Certainly how those main legal operators determine the way capacity is understood in ethics and jurisprudence is the result of the very idea of human dignity, as it has been built from its origin to the present day and is presented as the basis of individual rights [6]. The idea of human dignity served to protect at the same time the physical and moral integrity of most people and has also resulted in the stigmatization of certain groups (“the different ones”). Indeed, the ideal of human dignity is associated with the enlightened human model, characterized by the possession of a number of features associated with aesthetic and ethical standards. The human model of the Enlightenment, leaning upon perfection-based patterns (this was not new), in the service of achieving various ideals that were achieved by using such patterns. Thus, the idea of human dignity, in this context, was based on a human being characterized by the capacity and performance of a particular social role. And this remains the main reference for the idea of human person and the human person’s rights [7]. Indeed, the theory of human rights has been founded on an individual’s model mainly characterized by its ability to reason, by his ability to feel and their ability to communicate. This is the model that has traditionally represented the prototypical moral agent, that is, the person able to participate in the moral

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discussion. The projection of this model in the moral context involves focusing those capabilities on the moral issue, which is none other than the attainment of happiness or, if preferred, the achievement of a life plan. This is what we usually call moral capacity, also being a defining feature of individuals as moral agents. These attributes are presented as arguments that support the possibility of speaking about human dignity and, from them, the existence of rights which main function is to protect the development of that dignity, in short: of those capabilities. The rights are also presented as development mechanisms aimed at safeguarding dignity, mostly limiting, restricting or eliminating barriers that the use of the agent's capabilities may find. Moreover, the exercise of those capacities is often put in connection with the role held by the individual in society. Looking at it from another perspective, the idea of human dignity, clearly in the ancient world but also in modern times, is often associated with the social role of people. The idea of capacity serves to the extent that individuals are “useful” to society and the community, to the extent that it is possible to obtain certain social fruit from the actions of individuals. Certainly in the modern world, the radical nature of that statement has somehow diminished, especially from the idea that people should not be treated as means but as ends. But even today we somehow continue to value people according to these references. From this way of conceiving human dignity we, might think that the inclusion in this discourse of an idea of the individual with disabilities would not make sense, or as much as would it would be subject to discussion but not as a subject. Dignified individuals participate in the moral world, that is, individuals able to think, feel and communicate, to guide these capabilities towards different life plans and to play a specific and useful role for society or for the community. Those who do not have these skills can be granted rights, but not substantiated in the idea of human dignity, but as a result of the decision of the able subjects who consider them as worthy of this attribution. Human dignity has been built underlining what we might understand as a person’s abstract dimension, leaving aside the contextual or situational dimension. 3. A NECESSARY RE-READING OF THE NOTION OF MORAL AND LEGAL CAPACITY In this context and from those varied references, the International Convention on the Rights of Persons with Disabilities was adopted, specifically reflecting the issue of capacity through Article 12, being one of the most contentious items in its development process [8]. The point of the argument focused on the meaning and

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extent of legal capacity and confronted those who integrated in that term the capacity to act with those who did not. This controversy nearly provoked that the approval of the article with a footnote clarifying the meaning of the term in certain countries. Finally, the article was approved without the footer. Article 12 of the Convention, as I have reiterated, provides in paragraph 2, that persons with disabilities enjoy legal capacity on an equal basis with others and in all aspects of life. This, as was reflected in the dispute prior to final approval, the precept expresses that the field of capacity has gone from the substitution model to the model of support. Indeed, once the general statement Article 12(2), the following paragraphs of this rule establishes the commitment of States to take appropriate measures to provide the necessary support. It also provides that the measures established by independent and impartial authority or judicial body, must be adapted to the needs and circumstances of people with disabilities, and be proportionate as well as subject to periodic review. In addition to article 12, article 5(2) states: “States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds”. The construction of the principle of equality and non-discrimination present in the Convention accommodates to the contemporary treatment of the idea of equality. The contemporary interpretation of this principle departs, paradoxically from the fact characterizing the difference as human beings and, from here, presents the analysis of which differences are relevant for differential treatment and which differences are not [9]. It is considered discriminatory and both differential treatment based on non- relevant circumstances, and the undifferential treatment oblivious to relevant circumstances. The circumstances taken into account in this field correspond either with individual traits (which can be understood as a focus of identity) or with situations in which people find themselves (which can be understood as a situational approach) [10]. In the Convention, we find these two approaches, which relate to what I called at the beginning the social model (in which the view of the situation and the diversity model predominates). However, the social model that inspires international texts, forces us to emphasize on the perspective of the situation. This way, going from the substitution model to the model of support, together with the use of the situation’s perspective, represent one of the main challenges posed by the Convention to the status quo, given that as a matter of principle the limitation of legal capacity and thus the incapacitation of persons with disabilities come to question.

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Regardless of the legal value that different schools may give to the Convention, there is no doubt that it poses a series of questions that will be present in the contemporary treatment of disability. These are questions that affect both the meaning and the role of dignity and capacity along with the situation of persons with disabilities. The discourse of rights and the same speech about human dignity are based on a standard model that I have tried to summarize in the preceding paragraphs but which does not exhaust (should not exhaust the idea of the individual or of the moral agent). The concept of dignity is a human construct and as such, can be changed and shall be open to new dimensions. It is possible to pose an alternate conception of the individual, the moral agent and of dignity, without distancing oneself from the values present in the modern discourse, but taking into account another set of considerations. Thus, we need to rid ourselves of some ideal patterns that we project onto the concept of dignified human life. It is a true advantage to be able to walk, see, hear or communicate in contemporary societies, and it is necessary to facilitate those possibilities to those who do not have them. But, at the same time, it is important to warn about the possibility to reach a dignified human life having limitations on some of those features, as long as we are aware of the value of the individual’s autonomy and independence. The pursuit of life plans, i.e. the achievement of a dignified human life or, if you will, the free development of personality, is something that each individual must determine from his own moral autonomy. And this dignified human life needs to satisfy a number of requirements and needs, which are presented as necessary tools. This is precisely one of the functions of rights: to allow equal independent development of individual autonomy. On the other hand, we must realize that the idea of capacity is gradual and relative. Individuals possess different capacities yet it is difficult to maintain that some capabilities are worth more than others in a general context and especially that they may produce a higher dignity. In addition, the varying degrees of ability or disability may be due to temporary circumstances (as well as of a social nature) and can evolve and be acquired through different processes and methodologies. Finally, the relationship that sometimes is established between talent and dignity, the idea that the more talent, the more dignity, must be abandoned. The capable, talented subject can be deemed as such because he has had access to things that the disabled person could not access from the design of a society anchored in conceptions that never considered these persons, and that when it did, it was

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considering them as subjects who didn't carry the trait of moral autonomy, when in reality we are dealing with subjects who have been prevented from exercising their autonomy. Such relationship, besides being misleading, is unfair towards people who are denied a capacity. And if we want to keep that relationship, what we would need is to modify, as the movements for independent life do, the terminology that we use to mention persons with disability, using the term persons with functional or intellectual diversity [11]. Certainly, these terms are significantly more permeable to the considerations made in the precedent paragraphs about the dignity of persons with disabilities. So those who possess rationality, feelings or a diverse way of communicating (we are all human beings) finally should not be denied the possibility of being relevant moral agents in the moral discussion. In other words, the moral subject is one who, somehow, has the actual possibility, or potential, to a lesser or a greater degree, one way or another, to reason, feel and communicate, and to direct those powers towards achieving a particular life plan. So, the moral framework of the discussion is chaired by the value attached to these capabilities and possibilities in the search for a life plan (in the moral development of the capacity). This should entail significant changes in the law, some of them of undoubted complexity. In view of the provisions of the Convention, it seems appropriate to extend the field of mental and intellectual diversity, as it is done regarding physical diversity. As is known, this treatment is based on a general principle such as accessibility and an individual one as is the principle of reasonable accommodation [12]. Reasonable accommodation arises from the expression of the specific need of a person with disabilities, who is excluded or limited by the inaccessibility of the environment, or the imposition of majority patterns that hinder their access to a good or service. In this sense, universal accessibility is the goal to which design for all must aspire, as a strategy to achieve access for everyone. However, the same framework can be applied to legal capacity. This, like accessibility, is the presupposition and aspiration. However, there may be situations which require compensation (support in the exercise of that capacity). The need to make reasonable adjustments arises in the field of physical disability, because it will always be possible to design and make all the goods or services so that they can be used by everyone, because at times there will be people who cannot use a product or a service, or require modification or special adaptation in how to perform a task or receive information. Something similar can happen in the field of mental and intellectual disability in which a person may need adjustment or support from someone else.

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The convention in this advocates for the support model over the model of substitution, stating that the measures based on this model must respect the rights, will and preferences of individuals, avoiding conflicts of interest and undue influence, as well as they shall be proportional and adapted to the circumstances of the person, be applied for the shortest possible time, be subjected to regular review by an authority or a competent, independent and impartial judicial body, and they shall also be proportionate to the degree to which such measures affect the rights and interests of the people. The Convention thus obliges to leave the incapacitation processes and to abandon existing replacement of will procedures (guardianship) and to replace them with processes of support by a curator. The first court pronouncements on incapacitation that are taken into account by the Convention are following that line. For example, Judgment 282/2009 of the Supreme Court Civil Room, which incorporates the report of the General Attorney (based to a large extent on a report produced by the Instituto de Derechos Humanos Bartolomé de las Casas of Universidad Carlos III de Madrid), and that in its legal basis maintains that “curatorship offers a gradable, open framework adjustable to the needs and circumstances where decision-making support is needed (for the person with a disability)”. These are just timid pronouncements. We need to work in the construction of a new model of support that must: (i) be capable of providing maximum respect for the autonomy of the person with mental or intellectual diversity; (ii) be permeable to the different kinds of diversity and the concrete circumstances of each person; (iii) has the shortest possible validity and is periodically reviewable; (iv) compromises to the lowest possible degree the rights of the person. The convention chooses the situation approach instead of the identity approach, which makes obligatory that when in certain circumstances it is not possible to follow the support model (because the person’s will is impossible to know), that it shall be made based on the specific situation and not on the person's disability. Certainly, the passage to the support model, presents some difficulties of which two need to be highlighted. One is the need to protect the safety of others and the other is the need to protect the people with mental or intellectual diversity. These are issues which must be taken into account when setting the system up, but they cannot serve as a hindrance to the realization of change. In any case, it goes without saying that in all this new approach to disability, the law in addition to stay ahead of the social perception of this problem is a tool that

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cannot succeed if it is not accompanied by others, most notably education and training. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

Romañach J, Palacios A. El modelo de la diversidad. Madrid: Diversitas-AIES 2006; Romañach J. Bioética al otro lado del espejo. Madrid: Diversitas 2009; p. 28.

[2]

De Asís R. Las situaciones de dependencia desde un enfoque de derechos humanos. In: Ramiro MA, Cuenca P. Los derechos humanos: la utopía de los excluidos. Discussions of the Bartolomé de las Casas Institute of Human Rights 11. Madrid: Dykinson 2010; p. 163.

[3]

Ansuátegui FJ. Una discusión sobre los derechos colectivos. Discussions of the Bartolomé de las Casas Institute of Human Rights 1. Madrid: Dykinson 2001.

[4]

Calaza López S. Los procesos sobre la capacidad de las personas. Madrid: Iustel 2007; García García L. Marco jurídico de la enfermedad mental. Incapacitación e internamiento. Revista General de Derecho 2000; Rovira Sueiro ME. Relevancia de la voluntad de la persona para afrontar su propia discapacidad. Madrid: Ramón Areces 2005.

[5]

Palacios A. ¿Modelo rehabilitador o modelo social? Las personas con discapacidad en el Derecho español. In: Jiménez E, Ed. Igualdad, No Discriminación y Discapacidad. Buenos Aires: EdiarDykinson 2006.

[6]

Peces-Barba G. La dignidad de la persona desde la Filosofía del Derecho. Bartolomé de las Casas Papers 26. Madrid: Dykinson 2003. See Pele A. La dignidad humana: sus orígenes en el pensamiento clásico. Madrid: Dykinson 2010.

[7]

De Asís R. La incursión de la discapacidad en la teoría de los derechos: posibilidad, elección, Derecho y Poder. In: Campoy I. Los derechos de las personas con discapacidad: perspectivas sociales, políticas, jurídicas y filosóficas. Madrid: Dykinson 2004.

[8]

Palacios A. El modelo social de la discapacidad: orígenes, caracterización y plasmación en la Convención Internacional de los derechos de las personas con discapacidad. Madrid: CERMI 2008.

[9]

Barranco Avilés MC. Diversidad de situaciones y universalidad de los derechos. Madrid: Dykinson 2010.

[10]

De Asís R. Las situaciones de dependencia desde un enfoque de derechos humanos. In: Ramiro MA, Cuenca P. Los derechos humanos: la utopía de los excluidos. Madrid: Dykinson 2010; p. 163.

[11]

Romañach J, Palacios A. El modelo de la diversidad. Madrid: Editorial Diversitas 2006.

[12]

VVAA. Sobre la accesibilidad universal en el Derecho. Madrid: Dykinson 2007.

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CHAPTER 3

Disability and Constitution Rafael de Asís Roig* ‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Madrid, Spain Abstract: The International Convention on the Rights of People with Disabilities marks a turning point in the treatment of disability and among its most noteworthy features is that it treats disability as a question of human rights. In Spain, this Convention, which is inspired by the so-called social model of disability (and also in the model of diversity), has relevance at the constitutional level. According to Article 10.2 of the Spanish Constitution, the Convention has a fundamental effect on how the rights recognized in it are to be understood. This article proposes a reading of the Constitution according to the social model of disability (and the diversity model).

Keywords: Constitution, Disability, Interpretation, Non-discrimination. 1. INTRODUCTION In this paper, I will highlight some implications for our Constitution that should result from the implementation of the new notion of disability enshrined in the International Convention on the Rights of Persons with Disabilities. To that end, I will begin with a brief reflection that will allow us to introduce the topic, in order to discuss later the meaning of the Convention. I will continue with a short discussion on how disability is addressed in the Spanish Constitution of 1978. Finally, I will present some conclusions and proposals aimed at reconciling the constitutional text with the Convention. At any rate, I want to make clear from the very beginning that my intention in this paper is to stress the need to abandon traditional approaches to disability in order to embrace more modern ones. To that end I will use, together with other arguments, the text of the Spanish Constitution of 1978. Corresponding author Rafael de Asís Roig: ‘Bartolomé de las Casas’ Human Rights Institute, Carlos III University of Madrid, Spain; Tel: 0034 639403332; Fax: 0034 91 624 89 23; Email: [email protected] A translation by P. Rodriguez del Pozo y Frutos Miranda, translators of “Sobre capacidad y derechos”, in Perspectivas actuales de los sujetos de Derecho, Dykinson, Madrid 2012, pp. 37-56. ISBN: 9788490310090. *

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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2. THE NEW NOTION OF DISABILITY: NEW AND OLD VISIONS As pointed out by many scholars, in the recent years we have witnessed the legal implementation of a new vision regarding disability, which appeared in the specialized literature and the discourse of several social agents some time ago. This new vision, often referred to as the social model of disability, has an extension in another model that acts as its complement and is also present in recent legislative efforts. This other model is called the diversity model. It is well known that the social model departs from an understanding of disability that is not only focused on the features that a particular person may possess but also on situations in which the person might be involved as a result of social structures or customs. This way, disability policies should, in most cases, be aimed at “normalizing” the society rather than the people with disabilities. This is a model that has promoted the inclusion of disability in the discourse of human rights [1]. The diversity model, in turn, complements the social model of disability by conceiving disability as an example of human diversity, and considering that this plurality enriches society and must be protected [2]. These two ways of addressing disability inspire all the articles of the International Convention on the Rights of persons with Disabilities 2006 (which came into force in Spain in 2008); they actually began to show up in the Spanish legal system in 2003, by means of the Law on Equal Opportunities, NonDiscrimination and Universal Accessibility for People with Disabilities, and are certainly the foundation of the Law 26/2011 of 1 August, which regulates the adaption of the Spanish legal system to the Convention. The preamble of Law 26/2011 explicitly refers to the paradigm shift represented by the social model. Despite the above mentioned facts, it cannot be said that these two models govern the legal discourse of disability, nor its social image. Indeed, despite the above listed norms, the legal discourse remains anchored in another model, that is, the medical- rehabilitative model, which seems to be held by the majority of society [3]. For this model, disability is a personal deficiency and is thus related to a number of features that hamper the realization of a normal life. Therefore, the policies on disability should aim at the “normalization” of these persons, and to provide them with assistance to enable their rehabilitation and integration into society. Legal operators (lawyers, judges, law professors, attorneys general and government ministers), save a handful of exceptions, are still interpreting the law under the old paradigm, which, on the other hand, perfectly fits into the established legal traditions. And the same applies socially, thanks to the perpetuation of a traditional way of life and a traditional manner to assess people

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with disabilities (followed by some movements representing the interests of people with disabilities, and even by some persons with disabilities themselves). As I have mentioned elsewhere [4], in order to implement the social model and the model of diversity it is not enough to change the law. Social changes are needed, instead, and changes among legal operators, which can only be achieved by raising awareness and through the great tool of social change: education. 3. THE CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES The Convention on the Rights of Persons with Disabilities was approved in December of 2006. This is a new international treaty on matters of human rights. This kind of text is of the utmost importance for the discourse of rights, and for the discourse of disability. It is not easy to summarize the transcendence and main contents of the Convention. Nevertheless, I will highlight the eight most important dimensions that stand out as the most relevant in that text. First, the Convention means the definitive incorporation of disability in the discourse of human rights which, although it may seem obvious, had never happened in history [5] and is of outstanding relevance [6]. Surprisingly, disability had not been present in the discourse of human rights until the Convention, having traditionally been seen as part of the right to health care and other social benefits. The incorporation of disability into the human rights discourse implies a fundamental change in the consideration of the demands and claims of persons with disabilities, which now become genuine individual rights. Second, the notion of disability in the Convention, as opposed to the traditional ones -centered on specific features of specific persons, sometimes depending on disability degrees or coefficients - revolves around the barriers --many of which are socially created--. In addition, it applies a notion of disability that is open to the multiple circumstances in which people may find themselves [7]. This way, the notion of disability in the Convention is predominantly centered on the individual's situation, and not on his or her specific features. Third, the Convention underlines the value of human dignity as the essential reference for all rights of persons with disability. This notion of human dignity needs to be understood in terms of autonomy and independence, and requires a reformulation of the traditional conception of that principle, leaving behind its link with the idea of capacity [8]. Fourth, the Convention as a whole can be regarded as a strategy to fight against discrimination, which is one of the directions that mark the contemporary history

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of human rights. This way, the Convention participates in the new treatment the notion of equality has been acquiring in the discourse of human rights and which is characterized by recognizing difference as a fact, and by analyzing when equal treatment is justified and when, in turn, what is justified is a different treatment [9]. Hence, the Convention uses a concept of differential treatment that comprises direct and indirect differential treatment, as well as a kind of differential treatment that extends to both the disabled person and the persons related to him or her. It must be remarked that the Convention is a legal instrument that positions itself in the vanguard of even some contemporary theories on equality [10], where the issue of disability starts showing only in a rather timid manner [11]. In fifth place, the Convention attaches fundamental importance to universal accessibility and to reasonable adjustments. The former is a demand that promotes the realization of design for all, and appears as an enabling right for the exercise of the other rights. The latter is an individual measure for those cases where universal accessibility fails [12]. However, this principle does not replace universal accessibility and cannot be used as a justification for the absence of such accessibility to rights [13]. Sixth, the Convention, in consonance with the extension and new interpretation of human dignity, establishes the requirement of an equal legal capacity, thus eliminating the possibility of declaring people legally incapacitated (except in some very exceptional cases), and promoting a model of assisted decision-making for those persons who are in a situation of disability [14]. Seventh, the Convention recognizes the principle of independent life which, as it is well known, was one of the demands of persons with disability, more specifically, of the movement for independent life [15]. This principle implies the defense of personal autonomy of all persons and gives foundation to the design of public policies aimed at satisfying the rights of persons who are under a situation of dependency. In eighth place, the Convention, recognizing human diversity, establishes the principle of respect for the identity of the deaf community, which is considered a linguistic minority, and thus a cultural group [16]. It is commonplace to maintain that the Convention is a human rights treaty characterized by not recognizing new rights, to stress that the Convention simply guarantees the persons with disabilities the same rights enjoyed by everybody else [17] and that the Convention is a text that fights against the situation of discrimination in which persons with disabilities are, which translates into limited satisfaction of their human rights.

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Maybe that is the general spirit of the Convention. However, this treaty does recognize new rights for persons with disability. In some cases, it recognizes rights that have been generally denied to persons with disabilities; in other cases, it recognizes new rights that have their origin in specific claims. In this sense, it is possible to find four new rights that explicitly or implicitly crystallized in the Convention, namely, the right to equal legal capacity, the right to universal accessibility, the right to live independently and participate fully in all aspects of life, and the right to use the sign language. The right to equal legal capacity appears in article 12 of the Convention, second paragraph, which states: “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. This right includes the right to receive the necessary support to exercise that legal capacity, as it is stated in section three of the same article: “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” [18]. The right to universal accessibility is present in different parts of the Convention, and most prominently among the general principles of article 3, together with the specific reference to that right in article 9 (dedicated to accessibility). Certainly, accessibility is never mentioned as a right, but rather as a principle or duty of the States Parties. However, it can be with no effort correctly interpreted as a right in the context of the Convention. The right to live independently and to be included in the community is explicitly recognized by the Convention in its article 19 [19]. This right imposes the duty to guarantee that the persons with disability “have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement” on the States (19(a)). This right also implies “access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community” (19(b)). The right to use the sign language, which in reality implies not only the use, but also the recognition and protection of sign language [20], appears in several articles of the Convention. However, it is in article 30, dedicated to participation in cultural life, recreation, leisure and sport where it is stated that “Persons with disabilities shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture” (30(4)).

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4. DISABILITY AND THE SPANISH CONSTITUTION OF 1978 The Spanish Constitution of 1978 dedicates a specific article to persons with disabilities, although it does it in what today we consider poorly chosen language [21]. It is in article 49 of the constitutional text, where we read: “The public authorities shall carry out a policy of preventive care, treatment, rehabilitation and integration of the physically, sensorially and mentally handicapped by giving them the specialized care they require, and affording them special protection for the enjoyment of the rights granted by this Part to all citizens”. Article 49 is part of Chapter III, Title I of the Constitution, entitled “Principles governing Economic and Social Policy”. This chapter addresses the positive rights, usually conceived as social (as opposed to personal) rights. In this context, beyond the above mentioned language considerations, it is possible to criticize the constitutional text for considering the rights of persons with disabilities as positive rights, which implies an action from the State. Both, the language and the classification of these rights make evident that the conception of disability when the Constitution was drafted was the one I identified above as medical-rehabilitative. At any rate, it is necessary to underline that article 49 makes reference to all the rights guaranteed by the Constitution as rights to which persons with disabilities are entitled. In this sense, it can be maintained that the whole Title I is explicitly aimed at protecting that group of persons, applying most singularly articles 10(1) (human dignity) and article 14 (principle of equality before the law). Article 14 (which must be related to article 9(2)) [22] does not directly address disability. In fact it reads “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”. Nevertheless, disability is included in the clause “any other personal or social condition or circumstance”, as the Constitutional Court recognized in Judgment 269/94 of 3 October, 1994. In addition, the prohibition of discrimination based on disability is part of our legal system in the context of the European Union Treaty of Amsterdam (article 13), European Directive 2000/78/CE and article 21 of the Chart of Fundamental Rights. Our constitutional text, on the other hand, establishes in its article 10(2) that “Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain”. In this sense, article 49 must be interpreted taking as a reference the Convention on the Rights of Persons with Disabilities, which allows to interpret the constitutional precept based on the framework of the social model.

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Now, such interpretation of article 49 of the Spanish Constitution would imply at least: (i) to include the universal accessibility among the social welfare policies of the constitutional text; (ii) to understand the legal treatment of disability as not limited to health care and social security policies, but mainly as a question of human rights; (iii) to consider that policies on rehabilitation have as principal addressee the society at large and that they are intimately related to accessibility; (iv) to understand that integration implies inclusion in each and every sector of social life. Now, we need to be aware that the use of article 10(2) of the Constitution presents some problems in legal practice that stem from the fact that the legal operators, and most particularly some courts, do not give international law the relevance that it has [23]. In addition, resorting to article 10(2) is sometimes questioned based on a possible literal value of the rule on individual rights and sustaining that such rule is an expression of the sovereignty of the State; some, on the other hand, argue that article 10(2) cannot be used as the basis for recognizing new rights not explicitly contemplated in the constitutional text. More recently, our Constitutional Court has elaborated an interpretive theory based on what has been called evolving interpretation in legal culture. This pronouncement supports an interpretation of article 49 based on the principles of the social model. This interpretive doctrine is present in Judgment 198/2012 of 6 November, on a constitutionality question regarding Law 3/2005 that recognizes marriage between same sex persons. In point 9 of the legal reasoning of this judgment, the Court holds that the Constitution must be considered as a living tree. This way, its provisions must be interpreted in an evolutionary manner that allows for new realities. And, following the Court’s reasoning, this must be that way because the Constitution is a text which principles are applicable to situations never foreseen by its authors. In this context, it is the task of the legislator to gradually update the Constitution, and it is the task of the Constitutional Court to “control the constitutional adjustment of those updates, giving the norms a content that must allow to read the constitutional text in the light of contemporary problems and under the requirements of existing society, to which the constitution must respond, running the risk, if not, of becoming dead letter”. In the same sense, the Constitutional Court points out that the interpretation of the Constitution must be made taking as a reference the legal culture, consisting of the legal texts interpreted in a literal, systematic and genetic manner, adapting it to the legally relevant social reality; the opinions of the most current legal doctrine and that of the advisory institutions created by the legal system; the comparative law of the closest cultural context; and, in human rights matters, “by the international

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activity of other States as expressed in the international treaties in the jurisprudence of the international organs that interpret those treaties and in the opinions produced by the competent United Nations organs and other recognized international organizations”. Based on the interpretive doctrine of the Constitutional Court, we can advocate for an interpretation of article 49 of our Constitution founded on the social model of disability, and maintain the existence in our legal system of the new rights that I mentioned a few pages earlier. This, nevertheless, poses two different problems. The first one has to do with the reflections that I made at the beginning of this paper regarding the lack of a legal culture based on the social model of disability, in the context of a society where the medical- rehabilitative model is still prevalent. The second problem is related to the objections raised against the Constitutional Court's interpretive doctrine, represented by some of the minority pronouncements of the judges of that Court. For instance, Judge Manuel Aragón, in his dissenting opinion held that if the theory of evolutionary interpretation is applied, “there is no place for the constitutional rigidity, there is no place for the guarantee that --in the service of rigidity-- is established by the procedure for amending the Constitution, and there is no place for the distinction between constitutional power and constituted powers”. The same judge has also stated that the social reality might render some constitutional previsions obsolete, but that is why the Constitution itself foresees a procedure for its own modification: “The Constitution, thus, imposes limits on the legislator (if not, it wouldn't be a Constitution), but also imposes limits on the Constitutional Court, which must respect the rigidity of the constitutional norms for the simple reason that the Court can never be a sort of permanent constitutional power. If it were, the very notion of a Constitution would be broken”. In this context, the efforts to interpret article 49 according to the philosophy that imbues the Convention by resorting to article 10(2) in the framework of the evolutionary interpretation doctrine faces some obstacles. 5. SOME PROPOSALS The previous discussion evidences that the definitive, uncontroversial inclusion of the social model of disability in our constitutional system, and thus the inclusion of disability in the legal discourse on human rights would require an amendment to the constitutional text. As I pointed out, the simple modification of the law would not achieve an unchallenged application of that model, even if it would be a very important step towards producing incremental changes in our legal culture. The reforms needed to achieve our goal would be three. Two of which have to do

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with the constitutional text and one with the structure of our Constitution. The first reform, which I do not consider the most important, given that there are already mechanisms to achieve the same purpose, would consist of modifying article 14 of the Constitution, in order to include a reference to the prohibition of any discrimination based on disability or on the use of sign language. The second one, more relevant, is centered on article 49 of the Constitution, and would consist of the elimination of the term “handicapped” and the introduction of words that allow the Convention to permeate all parts of our legal system. In this sense, it would be necessary that the article refers to equal capacity, independent life, universal accessibility and sign language. The third reform would consist of moving the above mentioned article 49 to the first section of Chapter Two of the Constitution, to consider it without room for any doubt as an integral part of the constitutional system of fundamental rights. I cannot ignore the social and economic crisis we are suffering today, and need to concede that a constitutional reform does not appear as a viable option, most particularly when another array of constitutional issues are still open. However, I believe that should not be a valid argument to reject the possibility of modifying just two articles of our constitutional text, when what is at stake is an improvement in the satisfaction of fundamental rights for a numerous group represented by persons with disabilities. Until the proposed reforms materialize, the satisfaction of the social model of disability and the differential treatment for persons with disabilities will require resorting to article 10(2) of the Constitution, together with the doctrine of evolutionary interpretation. At the same time, we will need as a society to modify our understanding of the notion of human dignity [24] and our manner of identifying the moral agents [25]. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

Palacios A. El modelo social de la discapacidad. Madrid: Colección CERMI 2008; p. 103.

[2]

Romañach J, Palacios A. El modelo de la diversidad. Madrid: Diversitas-AIES 2006. See also Romañach J, Bioética al otro lado del espejo. Madrid: Diversitas 2009; p. 28.

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[3]

Longmore P, Mansky L. The New Disability History. American Perspectives. New York: New York University Press 2001; Also see Barnes C, Oliver M, Barton L, Eds. Disability Studies Today. Oxford: Polity Press 2002.

[4]

De Asís R. Sobre el modelo social de la discapacidad críticas y éxito. In: VVAA. Papeles El tiempo de los Derechos 2013.

[5]

Sen A. ¿Igualdad de qué? In: Mcmurrin SM. Libertad, igualdad y derecho. Barcelona: Ariel 1988; p. 144; Nussbaum M. Las fronteras de la justicia. Consideraciones sobre la exclusión. Barcelona: Paidós 2006; p. 22.

[6]

Cuenca P. Sobre la inclusión de la discapacidad en la teoría de los derechos humanos. Revista de Estudios Políticos 2012; 158: 104.

[7]

Palacios A, Bariffi F. La discapacidad como una cuestión de derechos humanos. Madrid: Cinca 2007; p. 11.

[8]

De Asís R. La incursión de la discapacidad en la teoría de los derechos: posibilidad, educación, Derecho, poder. In: Campoy I. Los derechos de las personas con discapacidad. Madrid: Discussion of Bartolomé de las Casas Institute of Human Rights-Dykinson 2004; p. 59.

[9]

Cuenca P, De Asís R. La igualdad de oportunidades de las personas con discapacidad. In: Cayo L, Álvarez G. 2003-2012: 10 años de legislación sobre no discriminación de personas con discapacidad en España. Estudios en homenaje a Miguel Ángel Cabra de Luna. Madrid: Fundación Derecho y Discapacidad 2012; p. 53.

[10]

Ribotta S. Las desigualdades económicas en las teorías de la justicia. Pobreza, redistribución e injusticia social. Madrid: Centro de Estudios Políticos y Constitucionales 2010.

[11]

Rawls J. A Theory of Justice (1971). Cambridge: Harvard University Press 1999; p. 83. Dworkin R. Virtud Soberana. Barcelona: Paidós 2003; p. 75. Sen A. ¿Igualdad de qué? Cit.; pp. 133 and following. Sen A. Nuevo examen de la desigualdad, Madrid: Alianza Editorial 1999, p. 33; Nussbaum M. Las fronteras de la justicia. Consideraciones sobre la exclusión. Cit; p. 22; Nussbaum M. Las mujeres y el desarrollo humano. El enfoque de las capacidades. Barcelona: Herder 2002; p. 120.

[12]

VVAA. Sobre la accesibilidad universal en el Derecho. Madrid: Dykinson 2007.

[13]

Cayo Bueno L. La configuración jurídica de los ajustes razonables. In: VVAA. 2003-2012: 10 años de legislación sobre no discriminación de personas con discapacidad en España. Estudios en Homenaje a Miguel Angel Cabra de Luna. Madrid: Cinca 2012; p. 159.

[14]

Bariffi F. Capacidad jurídica y capacidad de obrar de las personas con discapacidad a la luz de la Convención de la ONU. In: Pérez Bueno LC. Hacia un Derecho de la Discapacidad. Estudios en homenaje al Profesor Rafael de Lorenzo. Pamplona: Thomson Reuters Aranzadi 2009; p. 353.

[15]

Dejong G. The Movement for Independent Living: Origins, Ideology and Implications for Disability Research. East Lansing. Michigan State University Press 1979; Shapiro J, No Pity. People with Disabilities Forging a New Civil Rights Movement. New York: Times Books-Random House 1994.

[16]

See Cuenca P. Estudios sobre los derechos de las personas sordas. Madrid: Dykinson 2012; p. 99.

[17]

Palacios A. El modelo social de la discapacidad. Cit.; p. 257.

[18]

Cuenca P. La capacidad jurídica de las personas con discapacidad: el art. 12 de la Convención de la ONU y su impacto en el Ordenamiento jurídico español. Derechos y Libertades 2011; 24: 221.

[19]

Barranco Avilés MC, De Asís R. El derecho a la promoción de la autonomía personal y atención a las personas en situación de dependencia. In: Barranco MC. Situaciones de dependencia, Discapacidad y Derechos. Madrid: Dykinson 2011; p. 107.

[20]

De Asís R. Sobre el derecho al conocimiento y aprendizaje de la lengua de signos. In: Cuenca P. Estudios sobre los derechos de las personas sordas. Cit.; p. 99.

[21]

Cuenca P. Los derechos fundamentales de las personas con discapacidad. Un análisis a la luz de la

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Convención de la ONU. Alcalá de henares: Universidad de Alcalá 2012; p. 186. [22]

“It is the responsibility of the public authorities to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective, to remove the obstacles preventing or hindering their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life”. Section 9.2 of Spanish Constitution.

[23]

Cuenca P. Los derechos fundamentales de las personas con discapacidad. Un análisis a la luz de la Convención de la ONU. Cit.: p. 76.

[24]

De Asís R. Sobre capacidad y derechos. In: VVAA. Perspectivas actuales de los sujetos de Derecho. Colección Gregorio Peces-Barba. Madrid: Dykinson 2012; p. 37.

[25]

Courtis C. Discapacidad e inclusión social: retos teóricos y desafíos prácticos. Algunos comentarios a partir de la Ley 51/2003. Revista Jueces para la Democracia 2004. 51: 12.

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CHAPTER 4

The Convention on the Rights of Persons with Disabilities: A Necessary Step Towards the Universalization of Human Rights José Ignacio Solar Cayón* Faculty of Law, University of Cantabria, Santander, Spain Abstract: The Convention on the Rights of Persons with Disabilities places disability in the human rights discourse and, at the same time, enriches the common heritage of human rights in so far as it is much more than a treaty concerning exclusively persons with disabilities. It imposes a new legal construction of “disability” focused on objective situations rather than subjective identities. Consequently, the notion of “person with disabilities” which denotes the subject entitled to rights is presented as an open and expansive concept, whose meaning goes beyond the circle of persons belonging to certain and predetermined vulnerable groups. Besides, through the “universal design” and “reasonable accommodation” strategies and the “nondiscrimination on the basis of disability” clause, the status of “right-holder”, according to the Convention, potentially opens itself up to a universal application. In the chapter, the guiding principles of Convention are reviewed, underlining the importance of legal capacity and accessibility as de jure and de facto prerequisites, respectively, for persons with disabilities to be able to exercise their rights in a real and effective manner.

Keywords: accessibility, Convention on the Rights of Persons with Disabilities, legal capacity, non-discrimination, social disability model. 1. THE SHIFT TOWARDS A NEW APPROACH TO DISABILITY On December 13, 2006, the General Assembly of United Nations approved the Convention on the Rights of Persons with Disabilities (CRPD). This document is an extraordinarily important legal tool for two fundamental reasons. On the one hand, because it constitutes the first treaty within the United Nations human rights system dealing in a specific and binding way with the issue of disability. Secondly, because it signifies a paradigmatic change in the approach and legal treatment of this issue, placing it fully within the discourse on human rights [1]. * Corresponding author José Ignacio Solar Cayón: Faculty of Law, University of Cantabria, Santander, Spain; Tel: 0034 942 20 12 34; Fax: 0034 942 20 12 13; E-mail: [email protected] This text is linked to the The Consolider Ingenio 2010 “El tiempo de los derechos” (HURI-AGE) Programme.

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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This milestone was the result of a long discussion involving States, United Nation Observers, the Special Rapporteur on Disability, national human rights institutions and non-governmental organizations, especially those representing the views of persons with disabilities. And it is the culmination of an increasing process of awareness and attention by the international community towards the particularly vulnerable situation of these persons. This process started in 1971 with the United Nations Declaration on the Rights of Mentally Retarded Persons, which for the first time specifically tackled the protection of disabled persons’ rights, though its area of application was limited exclusively to those with intellectual disability [2]. Subsequently, the Declaration on the Rights of Disabled Persons in 1975 represented the first international legal document aimed at the recognition of human rights for all persons with disabilities, regardless of the types or causes thereof [3]. Several years later, in order to stimulate this process of social awareness, the General Assembly of the United Nations proclaimed 1981 as “International Year of Disabled Persons” and 1983-1992 as the “United Nations Decade of Disabled Persons”. As a result of this momentum, the United Nations approved the World Programme of Action concerning Disabled Persons in 1982 [4], which set up a series of principles and directives to take action in favor of persons with disabilities, and the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care in 1991 [5]. Finally, the last step before arriving at the Convention was the enactment in 1993 of The Standard Rules on the Equalization of Opportunities for Persons with Disabilities [6], a document that represents a clear turning point in the legal treatment of disability. In accordance with the new aspirations and claims of an increasingly powerful associative international movement, the traditional focus on medical concerns of prevention and rehabilitation was relegated in favor of a more comprehensive approach to the situation of persons with disabilities, focusing essentially on the need to guarantee the effective exercise of their fundamental rights, on an equal basis with others. This was the beginning of the paradigmatic turnabout that would eventually lead to the Convention. At the same time, it is worth noting that also in the human rights protection systems designed by regional organizations disability had already been an object of attention before the enactment of the CRPD, with International Law in this area well ahead, in general, of State legal systems [7, 8]. However, despite its undoubted significance, all of these international legal documents -whether of universal or regional scope- had very limited effectiveness, as they constituted mere “soft law” instruments. That is to say,

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instruments that lacked binding force for States, and which were only interpretative with respect to the rights already recognized in other binding international documents [9]. So, before the approval of the CRPD, we found an international legal landscape in which, though persons with disabilities were formally considered to be holders, like the rest of human beings, of the rights recognized in the United Nations human rights system -made up of the general treaties and conventions on human rights binding on States-, there was a lack of an effective rights protection system. First, because those general treaties did not specifically contemplate the situation of persons with disabilities and the consequent need to promote the necessary conditions to ensure the effective exercise of their rights. And second, largely as a result of the above, because there was no follow-up by the bodies responsible for monitoring the treaties’ implementation of their fulfillment in relation to persons with disabilities. These circumstances led to a paradoxical situation, revealing a clear contradiction between theory and practice of human rights in the context of disability and between the proclaimed values and their non-application to this group of persons. These shortcomings and contradictions were conclusively revealed in a series of studies and reports developed within the framework of the United Nations [10]. These shortcomings and contradictions stemmed ultimately from what G. Quinn and T. Degener, in one of those reports, called the “core problem”: the “invisibility” of people with disabilities in the United Nations system of basic freedoms [11]. For this reason, the elaboration of a thematic convention was called for to bring to light the specific issues related to these people. Unlike other vulnerable groups -such as women, children or national, ethnic, religious and linguistic minorities- persons with disabilities were not protected by a specific and binding instrument within that system, and there was no committee to specifically monitor the fulfillment of their human rights either. So, these initial efforts turned the international spotlight on the inequitable situation of persons with disabilities, the product of a history of discrimination that resulted in the absence of real opportunities to develop their lives in a free and autonomous manner, forcing them to claim assistance or protection. Finally, this process of awareness-raising and transition towards a new approach to disability fully inserted in the human rights discourse culminated in the approval of the CRPD, which addresses the rights of disabled people in an exclusive, comprehensive and legally binding way, establishing an international legal paradigm that imposes a new construction of disability [12]. This whole process of change was driven primarily by the claims of the associative movement of persons with disabilities and its spreading a new social perception of disability. This associative movement started in the United States in the nineteen-sixties -led by social organizations, universities and war veterans

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associations- under the banner of the idea of “independent living”, and was directly connected with the movement in defense of the equal rights of another vulnerable group: the black population. The reaction to a same situation of denial of their fundamental rights and their full inclusion in society, the fight against social stereotypes that contributed to perpetuating their marginalization and the use of similar strategies for claiming their rights were aspects shared by both movements. In 1972 the Independent Living Movement founded the first Center for Independent Living at Berkeley as an exponent of an alternative way of life for persons with disabilities. An alternative way that was opposed to the control of their lives by healthcare professionals and to the bureaucratic provision of welfare services, advocating the direct assumption of responsibilities by people with disabilities in the development and management of such services. This Independent Living philosophy would be almost immediately received in Europe due to the impulse of the Union of the Physically Impaired against Segregation, founded in England in 1975. Hardly a year after its founding, in the course of an intense debate with other associations, this organization publicly presented some “Fundamental Principles of Disability” which, grouped under the label of a “social theory of disability”, came to shape a new vision of disability and its causes as well as a new programme for action [13]. As for the causes, as opposed to the traditional medical approach, the new conception shifted the focus from the physical and mental factors limiting personal capacities to the social barriers that hinder or prevent the full participation of these persons in all spheres of society. So, it was stressed that it was necessary to grasp the distinction between “impairment”, such as lacking part of or all of a limb, or having a defective limb, organ or bodily mechanism, and “disability”, i.e. the disadvantage or restriction of activity caused by a contemporary social organization which takes no or little account of people who have impairments and thus excludes them from participation in the mainstream of social activities. While the notion of “impairment” belongs to the biological or natural order, “disability” is considered to be a particular form of social oppression. And as for the programme for action, instead of the traditional strategy of demanding benefits from political institutions and social administrators, which encouraged a paternalistic approach to persons with disabilities, the new movement called on them to take full responsibilities in all spheres of their lives in order to promote a deep social change. This aspiration of persons with disabilities to take control of their own lives and to become emancipated from the guidelines established by the welfare experts mainly health care professionals and social services managers- can also be found in the origin of the creation of Disabled People's International (DPI), the most influential international disability organization. DPI was formed as a breakaway

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association from Rehabilitation International, a forum composed largely of rehabilitation professionals. During the Congress, this international association was celebrated in 1980 in Winnipeg (Canada), delegates with disabilities -only some two hundred out of almost five thousand participants- submitted a resolution aimed at getting an egalitarian representation on the management committee. The resolution was widely rejected and, in response to that rejection, persons with disabilities decided to found their own organization under the motto “nothing about us without us”, holding its foundational congress in Singapore in 1981. Nowadays, that iconic theme has become the main leit-motif of the associative movement, encouraging the empowerment of persons with disabilities. 2. THE RECEPTION OF THE SOCIAL MODEL OF DISABILITY IN CRPD 2.1. The Openness of the Concept of “Persons with Disabilities” In line with the new claims of the international associative movement, the enactment of CRPD signifies the overcoming in the international legal context of the medical model of disability, in which persons with disabilities are primarily seen as individuals with serious health problems, dependent on social security and welfare and in need of separate services and institutions, and the reception of a social disability model, which addresses this question from the point of view of the States’ duty to ensure that persons with disabilities can effectively exercise their rights without discrimination. The inclusion of this new model in the Convention is plain from the very definition of the concept of “disability”, understood as “an evolving concept” that “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” (Preamble). Therefore, the notion of “disability” requires the interaction between two different elements: the concept of “impairment”, as a physical or mental condition of the individual, and the concept of “barrier”, as the social obstacle that hinders or impedes the equal exercise of individual rights. So, from this point of view, disability is no longer an inherent trait of some people, or groups of people, but the result of a series of circumstances, both subjective and objective, many of which are caused or aggravated by social setting [14]. The social disability model takes diversity in physical and mental traits as a fact that is consubstantial with human nature: everyone has different abilities and skills, strengths and weaknesses, needs and dependencies, so that all of us are, in a certain sense, handicapped. Consequently, the cause of disability is not as much the lack or limitation of personal abilities as the fact that such impairments are not taken duly into consideration in the

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organization of society. Thus, disability is neither natural nor unavoidable, but the consequence of certain social constructions (urban, architectural and communicative barriers, discriminatory rules and attitudes, negative stereotyping, etc.) which have a negative impact on the lives of certain groups of population, giving rise to situations of discrimination and social exclusion. This interactive and multidimensional conception of disability is also in keeping with the International Classification of Functioning, Disability and Health (ICF) made by The World Health Organization in 2001. Unlike the previous International Classification of Impairments, Disabilities and Handicaps (1980), which -according to the medical model- was a “consequences of disease” classification, ICF has become a “components of health” one, comprising biomedical and environmental factors so that, as the document itself underlines, the classification is not only about “people with disabilities” but about “all people”, and has “universal application”. Consistently, this new social construction of disability also carries with it a different conception of the right-holder. Therefore, article 1.1 of the CRPD lays down that “persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. The Convention, conceiving disability as a complex and relational reality, takes a broader and much more inclusive concept of “persons with disabilities” than the traditionally prevailing one according to the medical model. It is a concept that no longer refers to the possession of or to the official recognition of possessing certain physical or mental handicaps but, mainly, to the actual and objective situation of the difficulty or impossibility of exercising individual rights. Thus, the determination of the holders of the rights recognized in the Convention cannot remain subordinated to the administrative recognition of certain degrees or levels of impairment, as actually happens in the majority of state legal systems. Instead, it should be the result of an overall assessment of the circumstances, both subjective and objective, that give rise to the situation of dissatisfaction of individual rights. Due to this interactive and multidimensional conception, disability is understood as a dynamic and evolutionary reality in its conception and in its social perception. Besides, insofar as the focus of attention centers predominantly on the circumstances that prevent or impede the effective exercising of rights, and barely on the physical or mental traits that serve to identify the person, the notion of “person with disabilities” ceases to denote a clearly predetermined subject. The social disability model, and the rights-based approach it involves, is primarily focused on situations, and not on identities: the rights of persons with disabilities

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are, in general, the same rights any person possesses and, therefore, their justification does not rest on the existence of any particular group-identifying personal trait [15]. So, the rights holder is not defined by the possession of particular physical or mental traits but by the discriminatory situation resulting from the interaction between subjective and environmental circumstances. In this way, the concept of “person with disabilities” is an open concept, which goes beyond the identification of the individual as belonging to certain stereotyped groups. This openness is clearly observable at the CRPD, which states that persons with disabilities “include those who have long-term physical, mental, intellectual or sensory impairments”. It is not an enclosed and fixed definition, so it does not rule out -quite the opposite, it seems to allow- the possibility of recognizing, besides those persons with long-term impairments, other individuals as holders of the Convention rights. Thus, the concept of “person with disabilities” appears as a minimum and open concept [16]. This plasticity is a consequence of the evolving and relational or interactive character of the notion of disability that Convention assumes. The conception of disability as a social and cultural condition, rather than a medical or natural one, turns that notion into a dynamic and open one, changeable according to the varying social contexts and perceptions. We can find a good example of the expansive nature and the potentiality of this dynamic and open definition of the Convention concept of “persons with disabilities” in the recent judgement passed by the European Union Court of Justice in Case C354/13. This case originated in a request for a preliminary ruling concerning the interpretation of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Specifically, the referring court asked whether the obesity of a worker constitutes a ‘disability’ within the meaning of that directive and, if so, what criteria decide whether an obese worker may avail of the protection afforded by that directive against disability-based discrimination. In its judgement, the Court starts by stating that, after the ratification of CRPD by the European Union, the term “disability” used in Directive 2000/78 has to be interpreted in accordance with the definition set out in the Convention. Consequently, that term should be understood “as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”. In accordance with that meaning, the Court states that “obesity does not in itself constitute a ‘disability’ within the meaning of Directive 2000/78, on the ground that, by its nature, it does not necessarily entail the

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existence of such a limitation”. However, in the event that, “under given circumstances”, the obesity of the worker concerned entails a limitation of that kind, the Court admits that “obesity can be covered by the concept of disability”. In its opinion, “such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity”. So, the European Court of Justice concludes that it is for the national court to ascertain whether, in the case in the main proceedings, the obesity of the worker entailed a limitation which meets those conditions. In another sense -as we will see later in more detail-, the openness of the condition of right-holder can also be noticed in the way the Convention addresses the issue of accessibility as a problem not exclusively associated to the impairments of specific and stereotyped groups of persons. Thus, through the “universal design” and “reasonable accommodation” strategies, the Convention aims to ensure universal accessibility to every kind of utility and service, so that any maladjustment resulting from the interaction between the functional capacities of any person and the environment which hinders the effective exercise of their rights can be overcome. In this way, the meaning and scope of the concept “person with disabilities” whose rights are safeguarded in CRPD clearly goes beyond the limits of any purely medical notion, potentially opening itself up -like the International Classification of Functioning, Disability and Health- to a universal application. And furthermore, this openness of the status of “rightholder” according to the Convention transcends even the broadest meaning of “persons with disabilities” when the prohibition of discrimination comes into play, as we will see later. Hence, we can state that, at least with regard to some areas, the rights protected by CRPD are not only the rights of people with longterm impairments belonging to specific vulnerable groups but the rights of every person. 2.2. The Entry of Disability in Human Rights Theory The reception of the social disability model in the CRPD can also be seen in the way it deals with disability as a question of inequality and discrimination resulting from the ineffective protection of a person’s rights. While the medical model approaches disability from a healthcare and welfare point of view, encouraging a paternalistic social dynamic in which people with disabilities are primarily seen as mere recipients of public services, the social model involves an approach “from” and “towards” the realization of their human rights [17], considering these persons to be right-holders.

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If the origin of disability is not so much individual impairments or functional limitations as the interaction between them and the social environment resulting in exclusionary or discriminatory situations, changes in social structures and behaviour patterns should be promoted so that the specific circumstances and needs of persons with disabilities can be duly taken into account. This environment is the element to be transformed, leaving room for diversity in the design and construction of society in order to ensure those persons can actively and fully participate in all spheres of social life on an equal basis with others. And this is domain of law, as the main tool for social transformation. It becomes necessary to implement measures removing social barriers, so those persons can exercise in a real and effective way their fundamental rights. The normative response should be addressed, therefore, to correct the situation of dissatisfaction with their rights. This new approach to the legal treatment of disability is noticeable in the CRPD, in which article 1 states that its purpose is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. Consequently, the main purpose of the Convention is not the recognition of new and specific rights for persons with disabilities but to reaffirm they are holders of the same fundamental rights as any other person. It is true that long before the Convention persons with disabilities were already considered to be right-holders in the United Nations human rights system. But it is also true that the enjoyment of their human rights and fundamental freedoms was actually often hindered or impeded because many people with disabilities were not able to effectively exercise and access those abstractly formulated rights, designed and developed from a “normality” standard built on the common human stereotype and which ended up generating barriers and hindrances to the participation of those who did not succeed in adjusting to it [18, 19]. For that reason, what CRPD mainly does is to adapt the abstract wording and the general conditions for exercising rights and freedoms already recognized in other international treaties to the specific context of disability in order to realize the principle of universality of rights [20]. That is to say, translate the overall human rights discourse to the particular social reality in which persons with disabilities live. In this respect, it has been stated that, above all, the Convention lays down the right of these persons to effectively access human rights. For this purpose, the text identifies the specific conditions or needs whose satisfaction must be ensured in order to guarantee the full and effective enjoyment of those rights without discrimination [21].

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However, this process of re-designing human rights as regards persons with disabilities does not only involve the adaptation or adjustment of universal and common human rights to their particular and specific circumstances. It also justifies, in order precisely to guarantee the universal enjoyment of human rights, the recognition of some new and specific rights of persons with disabilities in so far as these constitute prerequisites or essential conditions to ensure their effective exercise. These specific rights fit the so called “everyday rights” category. That is to say, rights that aim to make human rights effective, mainly for individuals belonging to groups outside decision-making positions, by taking their particular situations and needs duly into consideration [22]. In this respect, these rights represent an expression of the value “equality”, understood as “differentiation” [23]. Of this kind, in the Convention we can find the right to accessibility (art. 9), the right to personal mobility (art. 20), the right to habilitation and rehabilitation (art. 26) and even the right to live independently and be included in the community (art. 20) [24, 25]. To sum up, CRPD becomes the expression at international level of a paradigmatic change in the legal approach to disability. A change that basically involves placing persons with disabilities, their needs and claims, at the center of the legal scene as holders of human rights and fundamental freedoms to be effectively satisfied, and not as mere recipients of welfare services and passive subjects of discretionary public policies. Thus, the rights-based approach provides a new look at persons with disabilities, underlining their abilities, skills and aptitudes to design and develop their own life plans in a free and autonomous way. So, full integration of disability into the human rights discourse leads to the ideal of individual autonomy [26], as an expression of the aspiration of persons with disabilities to make and carry out their own decisions. Therefore, as holders of fundamental rights, persons with disabilities should not be left out of the decisionmaking processes on public policies. In this new paradigm, paternalistic theories must give way to participatory ones, designed and developed through permanent dialogue and cooperation with representative associations of persons with disabilities and their families, as the Convention demands. Yet the inclusion of disability in human rights discourse does not only involve considering this issue from the point of view of eliminating discrimination in the exercise of those rights, but also, in the opposite direction, considering human rights from the point of view of disability. Thus it has been stated that taking this inclusion seriously forces us to rethink some aspects of standard human rights theories because these have been built on the model of an individual characterized as a moral agent by being endowed with certain capabilities (to reason, to feel, to communicate) [27, 28] and on the constraining contractarian assumption that entitles fully cooperating members of society to the mutual advantages of

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cooperation [29]. Undoubtedly, this review of the standard theories of rights in the light of disability will eventually lead to a more inclusive approach potentially affecting and benefiting all citizens [30]. 3. THE GUIDING PRINCIPLES OF CRPD Article 3 enumerates the general principles informing CRPD, which are reflected in the content of its provisions. These principles shape a dense framework of ethical values supporting the rights and freedoms recognized in the Convention and play an important hermeneutic role in its interpretation and enforcement. 3.1. Respect for Dignity, Autonomy and Independence of Persons with Disabilities: The Recognition of their Legal Capacity The first principle, or rather bundle of principles, is “respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons”. Principles which become the ethical foundations of CRPD, placing the question of recognition of persons with disabilities’ rights within the framework of human rights discourse. In this respect, the first proclaimed value is personal dignity, which represents the essential and inalienable basis for asserting the entitlement of persons with disabilities to human rights. This way, CRPD places the disability question at the heart of human rights theory, approaching it as a question of ensuring the exercise of the fundamental rights and freedoms of which those persons, by dint of their inherent dignity, are holders. For this reason, it has been stated that the Convention culminates the legal process of the “humanization” of persons with disabilities proceeding on the basis of this categorical and absolute principle: the inherent dignity of persons with disabilities [31]. From this recognition of the inherent dignity of these people as moral agents, the Convention seeks to promote their autonomous moral development, demanding the adoption of pertinent measures to eliminate the obstacles that hinder their decision-making processes and the fulfillment of their freely chosen life plans. And rights are the main tools with which achieve that goal. This assertion in the foreground of the principle of autonomy, and its direct linkage with respect for dignity, realization of freedom and personal independence, means that, in the new rights-based paradigm, the protection principle -prevailing in the previous medical model- has a residual character, so that it will only be applied when selfprotection is impossible and then, in any case, taking as the fundamental criterion for its application the principle of the best interests of persons with disabilities [32].

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Although the principles of autonomy and independence are present, whether explicitly or implicitly, in the contents of the different rights and freedoms recognized in the Convention, they acquire an individual and specific dimension in connection with some of its fundamental aspects. In this respect, the ideas of personal autonomy and independence crystallize mainly in the recognition of the right to independent living and personal mobility. However, where these values and the paramount idea of dignity assume special significance is, above all, in connection with the legal status of persons with mental disabilities, who have often been denied their most basic self-determination capacities. No doubt, there is an inescapable linkage between respect for individual autonomy, including the freedom to make one’s own choices, and recognition of the legal capacity of persons with disabilities, particularly of persons with mental disabilities, because they will only exercise their autonomy and make free decisions in a valid and effective way when they obtain that recognition. In this respect, article 12 proclaims the right of persons with disabilities to recognition as persons before the law. And, next, lays down that signatory States shall recognize that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. Thus it affirms the legal capacity, including the capacity to act, of every person with disabilities, regardless of the type or degree of their disability. This provision represents one of the essential pillars of the new legal paradigm in so far as recognition of legal capacity is the prerequisite for persons with disabilities to be regarded as holders of the same fundamental rights as other persons and subjects capable of exercising them on their own. So, legal capacity becomes the door giving access to the full enjoyment of their rights [33]. For this reason the United Nations High Commissioner for Human Rights has underlined the “centrality” of this article in the structure of the Convention and its “instrumental value in the achievement” of many other rights [34]. Precisely for its revolutionary nature, this provision was one of the most heatedly discussed from the beginning of the preparatory work on the CRPD. During this discussion certain countries expressed their reluctance about the wording of this article and some of them formulated reservations and interpretative declarations. The main discussion centered around the different meaning of “legal capacity” in several legal traditions and it caused a clash between those countries -led by the European Union- that pleaded for a full recognition of both de jure capacity (that is to say, the capacity to be a right-holder) and de facto capacity or capacity to act (the capacity to exercise one’s rights oneself in a legally valid way) and those -led by Muslim countries, China and Russia- that refused to recognize the full capacity to act of all persons with disabilities [35]. When the draft of the Convention passed to the Special Committee this discussion resulted in the introduction of a

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footnote on this point informing that in Arabic, Chinese and Russian languages the expression “legal capacity” means only capacity to hold rights, not capacity to act. But, finally, in the text approved by the General Assembly that footnote was eliminated. In any case, in order to get an appropriate understanding of this provision, it should be taken into consideration that the notion of “legal capacity” contained in the Convention encompasses both capacities, as derived from the above mentioned preparatory works, the report on Legal Capacity prepared by the High Commissioner for Human Rights in the Sixth Session for the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (24 January to 4 February, 2005) [36] and the overall meaning of the Convention. To understand the revolutionary change in the legal treatment of disability this provision involves, it should be remembered that one of the main consequences of the preexistent medical model was the limitation or deprival, as a general rule, of the capacity of persons with mental disabilities to act through the incapacity mandates. In fact, legislation currently in force in numerous countries still allows the interdiction or declaration of the incapacity of persons on the basis of their mental, intellectual or sensory impairment. And this declaration carries with it the appointment of a guardian who is attributed the legal capacity to act on behalf of persons with disabilities in some or all legal aspects of their lives. However, CRPD substantially changes this approach, restricting extraordinarily the use of incapacity mandates. As far as article 12 recognizes the legal capacity of persons with disabilities, including the capacity to act, on an equal basis with others in all aspects of life, it means that the mere existence of an identified mental impairment or the disability it contributes to generate is not reason enough to justify, by itself, the legal incapacitation of the people with it or the restriction, in an a priori and general way, of their capacity to exercise their fundamental rights. According to the Convention, any restriction of legal capacity due exclusively to disability constitutes a case of discrimination on the basis of disability, prohibited by article 5. In this way, the traditional equation of mental disability with legal incapacity is broken. So, whether the existence of a disability is direct or indirect grounds for a declaration of legal incapacity, state legislation of this kind comes into conflict with the recognition of the legal capacity of persons with disabilities enshrined in article 12. In this respect, it should be noticed the European Court of Human Rights’ decision in Shtukaturov v. Russia (2008), reviewing the compatibility of the applicant’s full incapacitation with the European Convention on Human Rights. Although CRPD is not even mentioned because it was not yet in force, this

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judgement positions the European Court jurisprudence in line with the Convention understanding of the legal capacity of persons with disabilities, opening a new path for later decisions. In the Court’s opinion, “the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation”. That is to say, incapacitation cannot be a consequence of mental impairment but a consequence of the determination of the disorder incidence in the different spheres of life of every person with disabilities. For that reason, the judicial adoption of any measure restricting the exercise of the fundamental rights of persons with disabilities must be the result of an appropriate and accurate individualized evaluation of their subjective and environmental circumstances, in order to provide “a tailor-made response” not limiting individual rights beyond what is strictly necessary. In the case under examination, the Court stressed that the medical report “did not explain what kind of actions the applicant was unable of understanding and controlling”, so “the incidence of the applicant’s illness is unclear, as are the possible consequences of the applicant’s illness for his social life, health, pecuniary interests, etc.” For these reasons, the Court concluded that the applicant’s full incapacitation was an interference with his private life that was disproportionate to the legitimate aim pursued and, therefore, amounted to a breach of article 8 of the European Convention on Human Rights. Still before the entry into force of the Convention, this decision marks the Council of Europe’s shift to a functional approach in the evaluation of legal capacity, requiring the precise determination of those specific personal and social tasks persons with disabilities are unable to perform by themselves. Coming back to the Convention, the aim of article 12 is the transition from the traditional model, that substitutes the guardian’s will for the incapacitated person’s will in decision-making, to a new model which supports people with disabilities so that they can make their own decisions and seeks to enhance their freedom of choice and autonomy. To achieve this goal CRPD stipulates that “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (art. 12.3). Thus, it demands the development of decision support systems assisting persons with disabilities in their decision-making processes as opposed to reliance on legal incapacitation. To this end, the Convention calls for the individualized study of the particular situation of each disabled person, analyzing the subjective and social obstacles hindering their decision-making processes in order to design the required support for exercising their legal capacity. And although these decision support systems can sometimes involve the assistance of an external party, this assistance is not aimed at substituting the will of the persons with disabilities with that of the assistant but promoting their ability to make their own decisions in order to

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enhance their autonomy [37]. Therefore, it is a question of making available to these persons the means required for them to make free and autonomous choices. And precisely in order to ensure the autonomous character of their decisions, the support systems must include effective safeguards to make sure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. No doubt, this provision forces States Parties to undertake far-reaching reforms in the area of civil legislation. In this way, within the framework of action by the Council of Europe, the Commissioner for Human Rights, among the Recommendations contained in the Issue Paper Who gets to decide? Right to legal capacity for persons with intellectual and psychosocial disabilities, has made a call on the States to review existing legislation on legal capacity in the light of current human rights standards, with particular reference to this CRPD article, urging them to abolish mechanisms providing for full incapacitation and plenary guardianship. This appeal is fully consistent with the Parliamentary Assembly Resolution 1642 (2009) “Access to rights for people with disabilities and their full and active participation in society”. That review, according to the Commissioner, “should identify and remedy possible flaws and gaps depriving persons with disabilities of their human rights in relation to legislation concerning, inter alia, guardianship, voting rights and compulsory psychiatric care and treatment”. 3.2. Non-discrimination CRPD declares in its Preamble the recognition of “the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world”. This equality derives from the proclamation contained in The Universal Declaration of Human Rights and The International Covenants on Human Rights that everyone is entitled to all the rights and freedoms set forth in those legal instruments, without distinction of any kind. Non-discrimination is, therefore, a direct and imperative requirement of equality. The notion of discrimination refers to an unjustified and unfair distinction, regarded as unacceptable because it is based on any personal trait or social circumstance that stands beyond the responsibility of the individual and it is the cause of damage or disadvantage [38]. It might be said that non-discrimination is the central goal of the Convention, in so far as its declared purpose is to guarantee the full and equal exercise of all human rights and fundamental freedoms by all persons with disabilities.

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Therefore, its aim is not so much to create or recognize new and specific rights of persons with disabilities as to ensure the effectiveness of the non-discrimination principle in the enjoyment of their human rights, so that these can be exercised on an equal basis with others. It requires the Convention to adjust the abstract and universal formulation of these rights to the specific circumstances and needs of persons with disabilities. And this adjustment is precisely the result of the interaction between the principle of equality and non-discrimination and the general content of every right [39]. To that effect, CRPD reformulates universal human rights, whether translating their general wordings into more detailed elaborations determining the conditions or measures necessary to ensure that persons with disabilities can effectively exercise their rights, or adjusting general categories of rights to the specific circumstances of these persons. Thus, the meaning of every human right is determined in the specific context of disability. As the main goal of the Convention is to guarantee equality in the enjoyment of their human rights by persons with disabilities, non-discrimination appears as the primary general obligation of signatory States, which “undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability” (art. 4.1). Consequently, the idea of equality as non-discrimination not only constitutes a fundamental principle, but is also an inherent part of the content of every right recognized in the Convention. Nevertheless, article 5 is specifically devoted to this question. It starts by stressing that State Parties recognize that all persons are equal before and under the law. Consequently, they should undertake to prohibit all discrimination against any person on the basis of disability, as constituting a violation of their inherent dignity and worth. “Discrimination on the basis of disability” is defined in article 2 as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. That banning encompasses “all forms of discrimination, including denial of reasonable accommodation”. Therefore, it includes both direct and indirect discrimination. Discrimination shall be direct when it results from a rule, policy or any other measure treating some persons in a different and harmful manner by reason of their belonging to a particular social group. It shall be indirect when the application of a rule, policy or measure providing the same treatment to every social group yields, as a result of the different factual conditions and environment of those groups, harmful consequences for any of them due to its differentiated and negative impact. So, CRPD proscribes not only measures with a discriminatory intent but also measures producing an unintentional discriminatory

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result. Thus, it can be stated that Convention focuses mainly on the discriminatory effect of the action and not so much -or not only- on its purpose. Moreover, the notion of “non-discrimination” under the Convention goes beyond ensuring mere formal equality, understood as equality before the law or equality of treatment. It aims to promote real equality through policies that seek to eliminate the unfavorable consequences deriving from the existence of de facto differences. So, its banning of discrimination is linked to a broad conception of equality that includes furthering the equalization of opportunities. Therefore, discrimination may not only result from the adoption of directly or indirectly discriminatory rules, policies or measures but also from the non-adoption of those rules, policies or measures which are required to remove the social barriers causing the discriminatory situation. In this way, failure to take account of differences may constitute a breach of the equality of opportunities also recognized in article 3 and, consequently, a case of discrimination. So, the principle of “equality of opportunity” asks for a very demanding conception of non-discrimination that includes the adoption of affirmative action measures aimed at overcoming all kinds of barriers hindering the full participation of persons with disabilities in society. CRPD even demands, within this group, that particular attention be paid to some persons who are likely to suffer multiple discrimination owing to their belonging simultaneously to several vulnerable groups, such as women (article 6) and children (article 7). Within this conceptual framework, CRPD expressly states the legitimacy of all the specific measures which are necessary to accelerate or achieve de facto equality of all persons with disabilities; measures that shall not be considered discriminatory (article 5.4). So, it admits “differentiation” as a guarantee of equality. Prohibition of discrimination itself justifies the differential treatment of different situations, precisely as a requirement of equality. A society authentically questing after equality is not one that ignores differences but one that adopts an inclusive approach and takes account of them in a positive manner. Consistent with this philosophy, States Parties undertake the commitment to act positively, creating the appropriate conditions to foster an effective equality of opportunities in the enjoyment of rights and the integration of persons with disabilities in all spheres of social life. And, in fact, a large part of the content of every provision in the Convention is devoted to setting out the pertinent measures to be taken by States for ensuring the effective exercise of each right. Precisely for the negative incidence of disability, even those civil rights and liberties that, as for the general population, demand no more than mere State noninterference in the personal sphere of action -freedom of movement, for example-, necessarily include in their formulation in the CRPD as duties of the States to act

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positively and to provide services and benefits to ensure the fulfillment of material conditions which are indispensable in enabling these persons to exercise those rights and liberties. This fact underlines the essential indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms in the field of disability, as stated in the Convention Preamble. In this respect, it has also been noted that the Optional Protocol makes no distinction between the justiciability of civil and political rights and that of economic, social and cultural ones [40]. Although Convention identifies some groups of persons for preferential protection, it should be realized that the banning of discrimination places the focus on the objective situation of inequality and discrimination, and not so much on the personal traits of victims or their belonging to certain groups. On the one hand, as we have seen, it has to do with the evolving and open character of the concept of disability itself. But, on the other hand, it has also to do with the fact that the forbidden act is not “discrimination of persons with disabilities” but “discrimination against any person on the basis of disability” (Preamble and articles 2 and 5.2). This means that the anti-discriminatory provision covers not only persons with disabilities in the broadest sense of this term, as we have seen earlier, but also any person who is hindered or impeded in the effective exercise of their rights for reasons concerning disability. So, the prohibition of discrimination includes discrimination against those persons without disabilities who, nevertheless, are socially perceived as disabled people for very different reasons: a wrong perception of their abilities, the suffering of disabilities in the past or, even, the likelihood of suffering disabilities in the future -an increasingly real possibility owing to the extraordinary development of genetic technologies-. Furthermore, this prohibition also includes the so-called “discrimination by association”, affecting any person who is treated less favorably than another for the sole reason of their relationship (family, caregiver…) with a disabled person. To this respect, mention should be made of the European Court of Justice’s decision in the Coleman case (2008). Trying to specify the scope of the prohibition of “discrimination based on disability” contained in Directive 2000/78/EC with regard to the particular case on trial, the Court stated that “where an employer treats an employee who is not himself disabled less favorably than another employee is, has been or would be treated in a comparable situation, and it is established that the less favorable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination”. Finally, it should be noted that CRPD, in the quest for equality and nondiscrimination, attaches particular importance to the promotion of educational and

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awareness-raising measures dealing with the situation of disabled persons, their abilities and their rights as an essential strategy to combat stereotypes and social prejudices (article 8). In this direction, throughout the Convention is present the recognition of the insufficiency of legal measures to address the issue of the full social inclusion of persons with disabilities and their equal participation in all aspects of social life, including in the regulation of almost every right the States’ duty to promote some pedagogical actions to facilitate its effective exercise. 3.3. Full and Effective Participation and Inclusion in Society This is the final goal of the CRPD and it will only be possible if full enjoyment of the rights and freedoms of persons with disabilities is effectively guaranteed. In the quest for an inclusive society, that participation should be extended to all spheres of social life without exception. This principle, which is closely linked to accessibility to environment, facilities and services, is particularly materialized in the right to live independently and be included in the community (article 19) and is also explicitly reflected in the content of many other rights, such as the right to an inclusive education system at all levels (article 24), the right to habilitation and rehabilitation to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability (article 26), the right to the opportunity to gain a living by work freely chosen or accepted in a labor market and work environment that is open, inclusive and accessible (article 27), the right to participate in political and public life (article 29) or the right to participate in cultural life, recreation, leisure and sport (art. 30). 3.4. Respect for Difference and Acceptance of Persons with Disabilities as Part of Human Diversity and Humanity This principle is founded on the recognition, contained in the Preamble, of “the valued existing and potential contributions made by persons with disabilities to the overall well-being and diversity of their communities”, and on the belief that “the promotion of the full enjoyment by persons with disabilities of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in their enhanced sense of belonging and in significant advances in the human, social and economic development of society and the eradication of poverty”. So, it involves accepting disability-related diversity as an enriching social fact and considering persons with disabilities as full right-holders, different but equal in dignity, whose participation in all aspects of social life can contribute to the development and well-being of society. Also from this point of view it can be stated that Convention is much more than a treaty concerning exclusively persons with disabilities, in so far as it enriches the common heritage

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of human rights providing a new paradigm: each and every one of us is different to the rest of mankind [41]. This is a principle directly related to the inspiring philosophy of the social model of disability. While the main goal of the medical model was the reintegration of disabled persons into society, understood as their adjustment to a social environment designed on the basis of parameters for what is considered “normal”, the aim of the social model is to ensure their full and autonomous participation in an inclusive society providing effective equality of opportunities. If the medical model of disability fostered social homogeneity, the inclusive model advocates a re-definition of social organization, through the participation of disabled persons themselves, in order to take account of diversity. In the legal field, inclusion demands the adjustment of common human rights to disability-related diversity. This is an adjustment that, as noted above, involves a differentiation in treatment which results in the States Parties’ obligation to promote affirmative action measures aimed at achieving real equality of opportunities. 3.5. Equality of Opportunity Equality of opportunity constitutes a material dimension of equality, different from mere equality before the law or equality of treatment. The starting point of CRPD is the recognition of a social reality, which is “the profound social disadvantage of persons with disabilities” (Preamble). Therefore the taking into consideration of this material dimension of equality points to the need to encourage “the promotion, formulation and evaluation of the policies, plans, programmes and actions at the national, regional and international levels to further equalize opportunities for persons with disabilities” (Preamble). Nondiscrimination, respect for diversity and equality of opportunities constitute key components in ensuring the effectiveness of the rights of persons with disabilities. In order to prevent this equality from turning into discrimination, it has to allow diversity through the promotion of affirmative measures and the recognition of specific rights if necessary [42]. Consequently, this principle has mainly to do with the previously mentioned States’ obligation to promote actions designed to eliminate the disadvantages that persons with disabilities face as regards the enjoyment of their rights and participation in society. This obligation is particularly strong with regard to those disabled persons who are subject to the jeopardy of multiple forms of discrimination, such as women and children. However, the design of public policies aimed at promoting equality of opportunities is not only addressed to satisfy the needs of persons with disabilities but also their families, in so far as they constitute the basic social units in which those persons’ lives are inserted,

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and become essential actors in their full personal and social development. To this respect, one should note the wording of article 28, which recognizes the right of persons with disabilities to an adequate standard of living for themselves and their families and to the continuous improvement of living conditions as a prerequisite to meeting disability-related needs and making possible the exercise of many other rights. 3.6. Accessibility It represents a central pillar of CRPD architecture, given “the importance of accessibility to the physical, social, economic and cultural environment, to health and education and to information and communication, in enabling persons with disabilities to fully enjoy all human rights and fundamental freedoms”, as the Preamble recognizes. Later, in the articulated text, accessibility is presented as a general principle (article 3, f) which is translated into specific duties for the States Parties (article 9) In line with the premises of the social model of disability, the Convention assumes a broad notion of accessibility which refers to the overcoming of any misadjustment between the functional ability of individuals and the environment that hinders the enjoyment of their rights. As for the objective element, environmental barriers can be due to different causes and be present in different spheres of activity. So, accessibility demands the elimination of all kinds of barriers (physical, informative, communicative, cognitive, cultural and attitude barriers) in all areas of personal and social life. And as for the subjective element, consonant with the open notion of “person with disabilities” accepted by the Convention and its potential for universal application, the development of this broad understanding of accessibility has led to a vision and treatment of this question that is not exclusively linked with the functional difficulties of stereotyped groups of persons with disabilities. The standard way in which societies are designed often creates disabilities for many people beyond the group of persons with long-term impairments: children, old people, overweight people, very tall and small people, pregnant women, people with temporary injuries… And the finding of this fact has led to a conception of universal accessibility as an issue that concerns all people, and not only a minority group of persons, by facilitating a better interaction between any individual and their environment [43, 44]. In this respect, Convention establishes “universal design” and “reasonable accommodation” as the main strategies for attaining accessibility to any facility and service for all persons. Understood in such a broad manner, accessibility constitutes an essential element to achieve CRPD goals and to make possible the realization of the rest of its

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principles. In consonance with the philosophy of the social model permeating the Convention, accessibility becomes a prerequisite for guaranteeing the effective exercise of the rights of persons with disabilities, in so far as inaccessibility is the most common cause of their non-fulfillment, giving rise to inequalities. Just as legal capacity is a de jure prerequisite for persons with disabilities to be regarded as subjects capable of exercising their rights on their own, accessibility is a de facto prerequisite for persons with disabilities to be able to exercise their rights in a real and effective manner. So it can be stated that legal capacity and accessibility are the two central pillars on which the effectiveness of the rights recognized in the Convention rests. From this point of view, accessibility appears as a requirement of equality that, because of its particular relevance in the specific context of disability, stands out on its own with regard to the rights of disabled people. If the sources of disabilities and, consequently, of inequalities and social exclusion are to be found in physical and social barriers rather than personal traits, elimination of these barriers is the most appropriate means to prevent these evils. For that reason, universal accessibility becomes a fundamental test for measuring the social standard of equal opportunities and living [45]. As a requirement of equality, even though CRPD does not recognize a right to accessibility as such, the situation of non-accessibility that hinders or impedes the effective exercise of any of the rights recognized in it constitutes an infringement of such a right. Thus, it can be stated that, in the operation of reformulating human rights as regards the specific context of disability that Convention performs, the content of these rights is “extended” and “supplemented” to cover all accessibility measures necessary to ensure their exercise on a basis of equality [46]. Given this eminently transversal nature of the principle of accessibility, which guides every provision of the Convention, it becomes an inescapable hermeneutic criterion to be taken into account by national authorities both when legislating functioning in this case as a guide and limit to different policy options- and when applying the rules in force -working as a criterion to construct their meaning and to address normative gaps and indeterminacy- [47]. 3.7. Special Attention to Persons with Disabilities Subject to Multiple forms of Discrimination 3.7.1. Equality between Men and Women Reception of this principle is intended to remedy the fact that the reality of women with disabilities is traditionally ignored, as reported in several international documents such as the Manifesto by Women with Disabilities (1997), adopted by the European Disability Forum, and the Conclusions of the I

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International Women and Disability Congress (2003). Despite constituting the largest group of disabled people, for a long time these women remained invisible within the United Nations human rights system, not even being mentioned in the Convention on the Elimination of All Forms of Discrimination against Women. So, CRPD comes to ending this dissociation between gender and disability perspectives [48], underlining from its very Preamble “the need to incorporate a gender perspective in all efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities”. This gender perspective is mainly justified by the fact that women and girls with disabilities represent a particularly vulnerable group, because they “are often at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation” (Preamble). That is to say, they potentially face multiple forms of discrimination because of their simultaneous belonging to several socially disadvantaged categories of persons. This multiple discrimination goes beyond the cumulative result of the sum of needs generated by disabilities and gender: the blending of both circumstances results in a different and particular situation that requires appropriate tools to address the specific needs of those persons [49]. And CRPD provides them with enhanced protection, adopting a two-fold approach. On the one hand, it devotes a specific provision (article 6) for this particular issue, forcing States Parties to take all appropriate measures for the full development, advancement and empowerment of women. Although such measures are not determined, it is plain that this provision demands the adoption of affirmative action measures for the purpose of promoting equality of opportunities for women with disabilities. And, on the other hand, Convention incorporates a cross-cutting gender component throughout the text that is noticeable in the particular regulation of many rights. To this respect, one should emphasize the importance of the gender approach in article 16, concerning protection against exploitation, violence and abuse, both within and outside the home. In general, States Parties have to ensure that protection services are age-, gender- and disability-sensitive. And, particularly, States are obliged to put in place effective women- and child-focused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted. The aim is not to leave any room for the traditional impunity for abuses of these specific vulnerable groups within the home. However, the principle of gender equality in the field of disability should be also taken into consideration from another point of view. Women have played and continue to play a determinative role in caring for persons with disabilities, usually within the family unit itself (in Spain, three out of every four caregivers are women, and seventy-nine per cent of them live in the same home as the person

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they care for). This situation may result in discrimination in family relations, at work… To prevent this, article 16.2 lays down the obligation of States Parties to ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities. And it cannot be forgotten that the Convention forbids all forms of discrimination on the basis of disability, including “discrimination by association” against relatives, caregivers or any other people who are subject to an unfair treatment because of their relationship with disabled people. 3.7.2. Respect for the Evolving Capacities of Children with Disabilities and Respect for the Right of Children with Disabilities to Preserve their Identities Until the approval of CRPD, the Convention on the Rights of the Child was the only international treaty within the United Nations human rights system expressly providing for persons with disabilities’ rights, which is indicative of the special attention this organization has paid to disabled children. And this special treatment is also reflected in CRPD, which demands the full inclusion of these children in all aspects of social life, so that they can develop their abilities as much as possible in order to be able to enjoy independent living. Protection of disabled children is also addressed from a dual strategy combining the existence of a specific provision regarding this issue (article 7) with a mainstreaming approach that requires taking account of the best interests of the child in the regulation of any right. As for article 7, one should underline the recognition of the right of children with disabilities to “express their views freely on all matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal basis with other children, and to be provided with disability and age-appropriate assistance to realize that right”. Through this participation, Convention seeks to enhance the exercise of their individual autonomy and the capacity to make their own decisions. Moreover, this participation constitutes an essential tool to achieve greater visibility and improve their standard of living because, as The State of the World’s Children 2013 declares, children with disabilities themselves are the most authoritative sources of information about their own needs and their opinions are important to know whether their needs are being satisfied. Directly linked to this right to express their views on all matters affecting them is the States’ obligation to closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations in the development and implementation of legislation and policies to carry out the Convention and in other decision-making processes concerning issues relating to them (article 4.3). This provision is a wake-up call regarding the lack of spaces and opportunities for children with disabilities to express their views, obliging

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States to develop institutional mechanisms to ensure the participation of those children in the design and implementation of public policies affecting them. As for the mainstreaming approach, respect for the evolving capacities of children with disabilities is noticeable in the regulation of many specific rights throughout Convention. In the health sphere, emphasis is specially placed on the importance of early childhood care in order to provide an effective response to the needs, transient or permanent, of children with impairments in their motor, sensory or cognitive development, or who are at risk thereof, demanding a multidisciplinary and coordinated action by health, education and welfare services (articles 25 and 26). As regards to education, with a view to realizing this right without discrimination and on the basis of equal opportunity, Convention mainly stress the States’ obligation to ensure inclusiveness of the general education system at all levels, encouraging the development by children with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential through the provision of effective individualized support measures and reasonable accommodation of the individual’s requirements (article 24). And, in the institutional sphere, Convention underlines the key role of families as natural contexts for children to grow up and fully develop their capacities. For this reason, it states the rights of children to be cared for by their parents (article 18.2) and to not be separated from them unless this is deemed by a competent authority to be in the child’s best interest (article 23.4). Even if the immediate family is unable to care for a child with disabilities, States are obliged to undertake every effort to provide alternative care within the wider family, and failing this, within the community in a family setting (article 23.5). The clear purpose of this right to family life is to avoid the institutionalization of disabled children, and ensure the full development of their capacities within the environment of an enriching home life, a context that cannot be replaced by any institution even if it is well run and meets children’s needs. Along with the respect for the evolving capacities of children with disabilities, this principle calls for the preservation of their identities. This demand reflects the international emergence of a disability “identity development model”. A model originally born from the aspirations and claims of the deaf community as a group with a particular cultural identity built around sign language and which, on the basis of that special identity, demands the recognition of specific rights. In fact, CRPD explicitly refers to this original and specific sense when it lays down the obligation of States Parties to facilitate “the learning of sign language and the promotion of the linguistic identity of the deaf community” (article 24.3). However, in so far as the wording of this principle does not distinguish between the different types of disabilities, it seems the scope of that States’ obligation cannot be restricted only to the deaf community but extended to all children with

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disabilities as members of a group with a common identity. Besides, this interpretation is consistent with the content of article 30, which states that all persons with disabilities “shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture”. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

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CHAPTER 5

People with Disabilities and Human Rights in Brazil: Equality of Opportunities as a Model for Social Inclusion Julio Pinheiro Faro Homem de Siqueira1,* and Gustavo Antonio Pierazzo Santos2,* 1 2

Researcher at the Department of Public Law, Federal University of Rio Grande do Norte, Brazil Law Faculty of Victória (VSF), Brazil Abstract: This chapter presents a model based on Rawls-Senian equality discussion for the social inclusion and the effectiveness of the rights of people with special needs as a vulnerable group in Brazil. There are four topics. The main topics are the introduction and the conclusion, and the middle ones treated, respectively, about the conceptions of disability, and the social inclusion promotion, both according to the Brazilian legislation and practices. In the topic, the conceptions of disability, this chapter brings the three more widespread concepts in literature, that is, the medical, the social, and the biosocial ones, demonstrating which is formally adopted in Brazil, and which is practiced. In the topic, the promotion of social inclusion it is presented the Rawlsian conception of justice and it's Senian criticism, both applied to the issue of special needs as an attempt to establish the equality of opportunities as a first step toward a better society for all people.

Keywords: Amartya Sen, Biosocial model, Equality of opportunities, Human rights, ICD, ICF, ICIDH, John Rawls, Medical model, People with disabilities, People with special needs, Social inclusion, Social model, Vulnerable groups. 1. INTRODUCTION There are many issues about the rights of vulnerable groups. One of them is related to disabled people. The perceptions of disability or of being disabled change according to the values, the circumstances, and the prevailing interests of certain societies, adopting different criteria, such as economic (unable to work), legal (legally disqualified or incapable for all or some actions) or medical * Corresponding authors Julio Pinheiro Faro Homem de Siqueira: Researcher at the Department of Public Law, Federal University of Rio Grande do Norte, Brazil; Tel: +552230543235; E-mail: [email protected] Gustavo Antonio Pierazzo Santos: Law Faculty of Victória (VSF), Brazil; Tel: 55 27 999848886; E-mail: [email protected]

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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(deprived of physical or mental ability through injury or disease), for example. In the 20th century, especially in the post-second World War, when international treaties and conventions on human rights and national constitutions strongly recognized human dignity as their main vector, those perceptions changed to a new standard.

This new standard seems to be more humane and egalitarian than the previous ones. It approaches human disabilities not as personal tragedy, but as lack of social inclusion, a kind of social tragedy. Theoretically, it accepts no discriminate perspectives, no labeling people as they were abnormal, no disparaging or belittling them. Nevertheless, the UN Convention of the Rights of People with Disabilities (UNCRPD) nomenclature does not seem to observe the alleged trend, once it classifies people in two categories, one of the people with disabilities, and other of the people that has no disabilities. Professionals sometimes employ a different expression, people with special needs, referring to all the minority group individuals who for a reason had been excluded from society as a whole. Employing as preferred expression people with special needs in the place of the one used in UNCRPD, people with disabilities, does not mean that this paper will not analyze the different models of regarding the disability issue. In the topic what disability means: three conceptions such models are analyzed, and it is concluded that the UNCRPD uses an inadequate terminology for the model it adopts, once people with special needs represent better the definition brought in UNCRPD: people with special needs “include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” (article 1). Then, three models (biomedical, social and biosocial) are analyzed. Besides the nomenclature, this paper regards also the social inclusion issue regarding the Brazilian case. It is argued in the topic social inclusion promotion as a double obligation that the UNCRPD enactment into national legal system will not alone give effectiveness to the human rights of people with special needs. Putting into focus that since 2008 the UNCRPD has constitutional force in Brazil, effectively implementing the rights of the people with special needs is a double obligation assumed by Brazilian State – one from the international perspective, and other from the constitutional point of view. It means that Brazil must undertake substantive actions to promote the rights also to the people with special needs, by means, for example, of judicial activism. Previously, it must be said that the UNCRPD establishes the general lines of a broad public policy for people with special needs, so the economic, social and cultural rights must be realized progressively, without prejudice of those UNCRPD obligations that are immediately applicable (article 4.2), as it occurs in Brazilian legal system (despite the immediate applicability of fundamental rights, it is understood that they have

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different levels of effectiveness, according to constitutional provisions). In order to better interpreting both UNCRPD and national Constitution guidelines, and proposing an alternative model of social inclusion for Brazilian public policies, it is adopted as the equality of opportunities since a Rawlsian-Senian approach. 2. WHAT DISABILITY MEANS: THREE CONCEPTIONS Disability in common language usage means simply, for some, the inability of doing something, but here it will be employed as an inclusive perception, a meaning in terms of non-ability of doing something, what is particularly very different, being evidenced in the following lines. For now, it must be said that for researchers there is no consensus on what disability means, nor how it can be quantified [1]. On the contrary, the definition of disability is highly contentious, once it covers a vast diversity of human conditions, and only in 19th/20th centuries the term began to be employed to refer to a distinct class of people [2]. Currently, there are three understandings informing three different approaches of disability, each one based on a specific classification. In an overview, the following can be registered: the medical model, based on the International Classification of Diseases, Injuries, and Causes of Death (ICD); the social model, based on the International Classification of Impairment, Disability, and Handicap (ICIDH); the biosocial model, based on the International Classification of Functioning, Disability and Health (ICF). The medical model was the first to appear. It understands disability as a physical or a mental impairment resulting in limitations faced by people with disabilities, that is, the disability is a source of disadvantages to be corrected by medical intervention or by a governmental compensation [3]. This model, also called biomedical or clinical, sees the disability as a body damage consequence, so the person must be submitted to a specific biomedical care. It is also called linear model, that is, for it there is a disease leading to a disability, an incapacity or a handicap [4]. For such model, social segregation, unemployment, low schooling, and other types of oppression to people with disability come from the inability of the damaged body in doing productive work [5]. Thus, the disability is a situation out of normality standard, what means an essentially individualistic, egocentric or liberal approach, which is still being employed by many in common language when they refer to disability as inability. Brazil was supposed to adopt the biomedical model until UNCRPD entered into force with the force of a constitutional amendment. The biomedical model can be verified in all the previous legislation as well as the ILO 159 Convention, segregating people in “normal” (without disabilities) and “not normal” (with disabilities). Both the Brazilian Institute of Statistics and Geography (IBGE, in

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Portuguese) criteria for the 2010 census data on people with disabilities, and the items for medical expertise employed by the Judiciary and the National Institute of Social Insurance (INSS, in Portuguese) are still based on the biomedical model, with some balancing of the legal criteria employed, that is: it is verified if the person with disability has both labor and social-economic conditions, checked basically through a maximum per capita income and a term of incapacity. So both the official demographic census and the analysis for giving assistance employ biomedical criteria, considering that a body injury conducts to disability, and then to an inability, being the pathology individual, not social. The social model brought a proposal for the redefinition of disability in terms of social exclusion, as a particular kind of social oppression not as a body injury outcome [6]. What means that disability is understood as a relation “between an individual and her social environment: the exclusion of people with certain physical and mental characteristics from major domains of social life” [7]. This model appeared around the 1970s, when the Union of the Physically Impaired against Segregation (UPIAS), the first political organization created and managed by disable people for taking care of their interests and rights, was founded. The contribution UPIAS gave was the redefinition of impairment, disability and handicap into sociological terms, not biomedical [8], resulting in the ICIDH, a classification related to the consequences of disease, not a classification like the ICD, which focus on the disease as a cause. In 1976, the ICIDH was launched, once the WHO found that ICD was no sufficient for the complexity of diseases consequences (disabilities were seen then as diseases) [9]. The ICIDH is an official international catalogue based on ICD, and in accordance to it the disability is seen as a temporary or a permanent structural or functional abnormality or loss, representing a pathological status manifestation, an organic disturb, reflecting in the ability of doing “normal” human activities, resulting in a social disadvantage to the individual [10]. Analyzing ICIDH, it can be detected, however, that it does not recover the biomedical model. It makes possible an approach in which the individuals have a no disabling (absence of individual prejudice) or a no disadvantaging (absence of social prejudice to the individual) disability. There are no data available reporting the use of ICIDH in Brazil, only of ICD. Despite the successful employment of it by many countries [11], interestingly the rarely defended medical model is frequently adopted, even unreflectively, by health care professionals, bioethicists, demographers, epidemiologists, policymakers, statisticians, philosophers, and other professionals have ignored or underestimated the contribution of social and other factors, like environmental, to the limitations faced by people with disabilities [12]. This happens too much in

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Brazil, which proclaims the adoption of a social-democratic rule of law, founded in the recognition not only of basic liberties, but also and especially of social rights, for implementing the constitutional aim of establishing the equality of opportunities among individuals. A clear not assumed contradiction. The biosocial model (or biopsychosocial model) appeared around the 1990s. During the last 20th century decade, the ICIDH was reviewed, and in 2001 WHO launched the ICF, treating disability as a health issue [13], no more only social or solely medical. With this new classification, both social and medical models were integrated into a third. From an analysis of ICF, it can be seen that the individualistic concept of disability as a strictly personal issue fell to a broader concept indicating social participation restrictions. Thus the ICF is a multipurpose classification for disability, which, then, is a multi-dimensional concept, that considers people body functions and structures, activities and participation (experiences of life and life experiences), environmental and personal factors. According to the WHO, ICF “is a classification of health and health-related domains”, domains that help “to describe changes in body function and structure, what a person with a health condition can do in a standard environment (their level of capacity), as well as what they actually do in their usual environment (their level of performance)” [14]. This new model, also called interactive model (employing neutral terminology, emphasizing experiences, not disabilities, so these people are not seen as handicapped in relation to people without disabilities) [15], is based on the people interdependence, on the natural duty of mutual cooperation, which bonds people in their humankind; so disability is seen then as a way of life, being part of the human experience [16]. It is adopted by the UNCRPD, which determines that the signatory States must implement public policies for social inclusion and citizen participation of people disabilities, conferring equality of opportunities for enjoying autonomies and liberties, even if they cannot achieve full independence. Then, with the UNCRPD model, disability started being viewed as an oppression of the impaired body, abandoning its conception as a medical problem, and regarding it as a social oppression issue. This change to the biosocial model is challenging the public policies experts, once to UNCRPD the conception of disability is not limited to a list of impairments or diseases that come from biomedical knowledge [17]. It means that to countries which adopt the UNCRPD model (Brazil adopts it, once it has constitutional amendment force), the ICD by itself is insufficient, and it must be suited to ICF, which considers disability as the patterns of inequality that are imposed by environmental barriers on a body with impairments. The ICD (providing information on mortality, that is, it mainly classifies causes of death) and the ICF

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(providing information on health and related outcomes, so it classifies health) are complimentary. Using them together provides a more meaningful and complete picture for disability, or, better, to the health and social needs of people with disabilities. Nevertheless, two things must be observed. Firstly, the biosocial model is the current result of a discussion on how disability must be seen and treated by individuals, societies and governments, that is, it sees disability as an expression of human dignity, in which a person with an impaired body experiences inequality because of social barriers, being only a disadvantage due to social oppression. Second, notwithstanding UNCRPD entered into force in Brazil with the force of a constitutional amendment, establishing the biosocial model, it stills being applied the biomedical model, in which is founded the Brazilian pre-UNCRPD legislation and the ILO 159 Convention (adopted in Brazil), so both Brazilian government bureaucrats and official organs, as well as judges continue applying the criteria that come from such legislation. This is also shown in a literature review about the use of ICF in Brazil between 2001 and 2011, concluding that “the use of the ICF is still incipient in the Brazilian scientific community, despite the growing interest in its use” [18], as well as the criteria employed for assistance benefits concession analysis. 3. SOCIAL INCLUSION PROMOTION AS DOUBLE OBLIGATION The 2008-2010 Brazilian National Report on fulfillment of the UNCRPD provisions is the first and the unique produced until now in Brazil [19], and accomplishes an obligation inserted in the UNCRPD text (article 35.1). Such national report starts the following topic, for two reasons: first, it detaches the actions taken by Brazilian authorities for implementing the people with special needs rights in the first biennium of its entering into force; second, article 36.1 of UNCRPD establishes that at least four years it must be done a report, what means that probably the new national report will appear at the end of 2014. The importance of this document is in revealing how Brazil fulfills its double obligation, one in international level, and the other in national level. Summing up what the 2008-2010 report brings, one can found that it is a kind of summary about the formal actions taken by the Brazilian authorities until 2011, when it was published. After reading the 62 pages of the report, one question remains: what of those actions really, or effectively, helped improving and implementing the people with special needs rights? It seems that Brazil protects the integrity its people by means of laws, not actions. Needless to say, a law or a social right recognized into a law does not go by itself. It is necessary political will for implementing it.

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An example detaches very well what is being said here. In 2002, it was enacted the Law 10436, which recognizes as a legal form of communication and expression the Brazilian Official Sign Language (Libras, in Portuguese). However, if one searches in internet the text of Brazilian 1988 Constitution in Libras the outcome will be null; if there is no government website with a Constitution in Libras for deaf people, probably they will not know their rights. From this perspective, it could be concluded that the Brazilian government does not take even simply actions for promoting people with special needs rights. Laws and public policies do not mean that the rights are being implemented. Whether someone observes which the concrete outcomes from such laws and policies are will probably found that they are majorly ineffective for most of the people with special needs. Another interesting example comes from the 2010 Census data produced by IBGE. It indicates that in 2010, 23.91% of the Brazilian population had some form of disability, a segment totaling approximately 45.6 million of people. The most interesting are not the numbers, but the criteria employed by the government institute. According to a glossary available at its website [20], it were investigated the disabilities in accordance to a personal situation, that is, the government official census considers, even after the UNCRPD gained force of a constitutional amendment, that disability is a personal tragedy, a lesion which has as its outcome a inability for doing something “normal”, a disability thus. A third example comes from a judicial activism that wasn’t. It is very well known that Judiciary branch, mainly in health and in educational public policies questions, tends to judge favorably for implementing social rights; both specialized literature and case-law are prolific on examples for such issue. There is a general public policy in Brazil: the 1993 Social Assistance Organic Law 8742, establishing a continuing social assistance benefit for people with special needs (BPC-LOAS, in Portuguese). According to its article 20, paragraph 2, the concession of such benefit adopts formally the UNCRPD conception. However, the conditions under which the benefit is granted by the Judiciary do not follow materially the biosocial model. These conditions are two: a maximum per capita income, and a term of incapacity. A conclusion comes: in praxis, the UNCRPD is not observed by Brazilian bureaucrats, once it does not adopt those two conditions. The three examples described above reveal a deficient society which tends to exclude, or to not include, people with special needs in the society. It also reveals that both the international and the constitutional obligations are not being accomplished by Brazilian government, opposed to what 2008-2010 national

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report seems to suggest. Differently from what is established by the UNCRPD, the current Brazilian model seems to be an inequality of opportunities one. The equality issue is a crucial subject in the main ethic theories of social orders. Even those theories that are said to be “against the equality” are egalitarian in some sense. While some advocate income equality, others advocate equal liberties and equal distribution of primary goods (John Rawls), or even equality of libertarian rights (Robert Nozick). For this reason, as well noted by Amartya Sen, the really critical question to the ethic analysis is not “why equality?” but “equality of what?” [21]. In fact, there are many different ways to approach the distribution of goods and the social inclusion in a society. Whether or not people with special needs should be “socially included” and what is the right way to do that can be answered with various different perspectives. One way to solve this problem could be the following: if people gathered to choose the principles to govern their lives, in an initial situation of equality, without knowing whether or not they would be born with special needs, what principles would they choose? John Rawls, in his A Theory of Justice argued that the way to think about justice is to ask what principles people would agree to in an initial situation of equality, behind a “veil of ignorance”. The importance of this “veil of ignorance” is to “nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage” [22]. Ignoring their social class, their religion, their talents and abilities, their conception of the good, the particular circumstance of their own society, and the like, but considering, as far as possible, general facts about human society (biological, economical, sociological, psychological theories and so), people would agree about some basic principles to govern themselves, principles finally based not in particular perspectives or bargain power, but in justice and fairness. This approach seems to be satisfactory to the issue of “special needs” since it apparently guarantees a certain impartiality that would prevent the well-known negligence over the more neglected ones. Nevertheless, according to Amartya Sen, Rawls's theory of justice has at least two particular problems. First, the theory assumes that all people in the “original position” would find the same set of principles to govern themselves. This possibility would imply that there is only one impartial argument to all justice problems, and this does not seem to be true [23]. As Sen argues, it is not easy to state that, for example, the libertarian, the economic egalitarian, and the utilitarian theories are all unfunded and partial. In other words, a person in the original position could choose any of these theories without being biased [24]. Second, Rawls adopts in his theory a “transcendental” approach to justice, focusing on identifying perfectly just societal arrangements. According to him, from the “original position” it would emerge some general

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principles that, if followed, would guarantee, by themselves, a just society. However, the whole idea of the “original position” dispenses a “comparative approach” which is crucial to the “investigation of different ways of advancing justice in a society (or in the world), or of reducing manifest injustices that may exist” [25]. In other words, even if there were only one set of impartial principles of justice, which does not seem to be true, the strict distinction between the “just” and the “non-just”, according to these principles, would leave the society on the “nonjust” side even after the introduction of social policies that abolish slavery, or eliminate widespread hunger, or remove rampant illiteracy, all of which can be seen in a comparative perspective as a justice-enhancing change [26]. As Rawls argued, in the original position the following two principles would emerge with unanimous agreement: 1) “each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others”; and 2) “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all” [27]. The first principle, according to Rawls, has precedence to the second, which means that infringements of the basic equal liberties cannot be justified by greater social and economic advantages, and it implies the protection of individual rights such as the right to integrity of the person, to vote, to hold public office, to freedom of speech, to freedom of thought, to religious belief and to personal property. The second principle is divided in two requirements: (1) the laws and the institutions must guarantee to all people the same opportunities to reach positions of authority and responsibility; and (2) the only social and economic inequalities that are permitted are those that work to the benefit of the least advantaged members of society. However, again, these two principles of justice are not enough without a comparative perspective. Take an example. Based only on the two principles, one might get confused whether or not Brazil is a just country. One might conclude that Brazil is a just country, since, firstly, it guarantee the right to vote, to personal property, to freedom of thought and so; secondly, Brazilian laws impose many taxes on wealth, such as the individual income tax, with a rate ranging from 7,5% to 27,5% over the individual income, and the urban real estate property tax, both of which are progressive taxes, which means the tax rate increases as the taxable base amount increases, observing when possible the ability to pay criterion, as the Constitution states; third, Brazil has many social programs, as, for example, cash transfer programs that provides financial aid to poor families, and university quotas for public high school graduates and black students. One might think that

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Brazilian laws and institutions already satisfy the two principles. Anyway, the interpreter would certainly conclude between a totally just and a totally unjust society. Without a comparative perspective, someone could ignore the huge injustices that exist in Brazil and the practical solutions to reduce them. But why is Rawls theory so important to the disability issue? As already noted, his theory has the fundamental importance of taking the public reasoning and the impartiality as crucial points in the idea of justice. The ideas of the “original position” and the “veil of ignorance” show very clearly why judgments of justice cannot be an entirely private question. Amartya Sen agrees with this, since his theory also takes these two points as essential ones. The basic differences are that Sen, instead of invoking the original position, invokes the Adam Smith's “impartial spectator”, who (1) need not to be a member of the society and (2) whose impartiality does not come through the experiment of the veil of ignorance in the original position, but it comes through the idea of contrasting alternatives on how to throw light on specific issues of advancement or retrogression of justice in a comparative approach, imagining himself or herself “as coming from far as well as near, with questions being asked about how the decisional problem would look to those who may have had different social and institutional experience” [28]. The practical consequence is that while the Rawlsian impartial judge looks for principles to build a perfectly just society from the “blind” perspective of the veil of ignorance (transcendental perspective), the Senian-Smithian arbiter is concerned to solve real and concrete problems, not behind any veil of ignorance, but considering all the possible perspectives about the problems (comparative perspective). While the Rawlsian judge excludes, the Senian-Smithian includes. Sen calls it “the closed and the open impartialities”, respectively [29]. It then follows that it is not necessary to elaborate a complete theory of justice before reaching the conclusion that, for example, the hunger must be eradicated and people with special needs should have the possibility to fully exploit their capabilities, assuming people would put themselves in the place of hungry people or people with special needs. Another important aspect of Rawlsian theory of justice is the rejection of the moral deserve. One can argue that life is not fair and people with appropriate characteristics, talents and abilities just deserve to earn more money, access better positions in society or develop their capabilities better than others. The same argument, however, can be used in favor of the hierarchy based on birth from caste societies: “Life is not fair. Those who are born in noble families have the right to enjoy their wealth, and those who are born in poor families are just unlucky and they deserve to have less liberties” [30].

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Talents, the capacity to endeavor, as well as pre-birth factors such as birth place and social position of the family are all arbitrary parameters to define if someone has the right to have opportunities to do what he wants. It is true meritocracy with free market is better than caste systems since the goods are distributed according to each person's wills. If a great and famous soccer player earns so much money it is because people freely pay him for doing something they appreciate very much. Nevertheless, if this famous soccer player was born in a society where there is no soccer, and his unique talent was to play soccer, it would be not fair to let him suffer in poverty. As Rawls stated, life cannot be just or unjust, what is just or unjust is the way people and institutions treat people's lives [31]. For example, if a society does not provide efficient ways for blind people to communicate and interact, it is not the lives of these people that are unjust, but the society where they live. These people are not essentially abnormal or disabled; actually, it is the society in which they live that makes them disabled. A person who is “talented” and a person who has “special needs” have the same right to be happy and to fully exploit their capabilities. In fact, and again, if people would put themselves in the place of another person, a talented one or a “special” one, they would probably agree that they would deserve the same opportunities to be happy and free. Notice that it is not the scope of this work to analyze all the issues about the subject of equality, whether a just society would provide equality of welfare, equality of income or equality of capabilities and so on [32]. What is stated here is that the equality of opportunities, broadly speaking, is already a big step into a fair society. Giving each person effective opportunities to fully exploit their capabilities is essential to a society that claims to be just. It seems reasonable that behind the “veil of ignorance” people would not agree to live in a society that oppresses racial minorities, religious minorities or people with special needs because of the possibility that they belong to these minorities. Both the Rawlsian transcendental perspective and the Senian comparative perspective lead to the conclusion in favor of the social inclusion of people with special needs. Although the social inclusion of these people is not a direct consequence of the two principles that would emerge from the Rawlsian “original position”, it seems that this would be an inevitable consequence of judicial and political application of these principles. On the other hand, the comparative approach shows how a fair society should immediately treat these manifested injustices. If all people are equal and have the same dignity, as the Brazilian Constitution states, the society cannot treat different people as abnormal or disabled, but it must give to people with special needs all the opportunities to fully exploit their individual rights and their capabilities, according to each case and necessity,

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through the idea of public reasoning “contrasting alternatives to throw light on specific issues of advancement or retardation of justice in a comparative approach” [33]. Otherwise, what people call “society” would be just a big arena of animalistic competition. 4. SOME FINAL REMARKS As someone might say, the problem with the disability issue is not with the concepts given, but with the labels attached to them. Unfortunately, disability is still being treated majorly under a segregating view, in two ways. The first views it as a problem that lies on the individual with body impairment, which must be clinically treated, that is, it lies exclusively on the individual, having no social responsibility; so the clinical (medical or biomedical) model classifies people in normal or abnormal, as it comes from the ICD application, even with the judicial balancing that gives flexibility to the legal criteria. The second views it as a problem that lies on the society addressed to the individuals, transforming the issue in a minority rights question, operating a model of exclusion due to an individual condition, which is pertaining to a specific group (minority or vulnerable group). Then, both models (medical and social) are segregationists, since they miss an important question: there are alternative accounts, that is, a “normal” individual can be “disabled”, as well as an “able” individual can be “abnormal”; or, some people due to their conditions can be at a minority group, but have majority rights. Fortunately, there are some voices that speak about disability as something coming from a social oppression issue due to barriers socially imposed by people with perfect bodies against people with impaired bodies. These social barriers, which are also called social exclusion or oppression, results from the sum of personal social roles since the social inclusion means that the person is able and competent to fulfill social expectations. CONFLICT OF INTEREST The authors declare no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

Mitra S. The capability approach and disability. Journal of Disability Policy Studies 2006; 16(4): 236.

[2]

Stanford Encyclopedia of Philosophy. Disability: definitions, models, experience. Available from: http://plato.stanford.edu/entries/disability/. Access 26 Sept. 2014; Boyd KM. Disability. Journal of Medical Ethics 2011; 27: 361-62.

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[3]

Stanford Encyclopedia of Philosophy. Disability: definitions, models, experience. Available from: http://plato.stanford.edu/entries/disability/. Access 26 Sept. 2014.

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Vall J, Costa CMC, Pereira LF, Friesen TT. Application of International Classification of Functioning, disability and Health (ICF) in individuals with spinal cord injury. Arq Neuropsiquiatr 2011; 69(3): 514.

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Diniz D. O que é deficiência. São Paulo: Brasiliense 2010; p. 24; Barcellos AP, Campante RR. A acessibilidade como instrumento de promoção de direitos fundamentais. In: Ferraz CV, Leite GS, Leite GS, Leite GS Eds. Manual dos direitos da pessoa com deficiência. São Paulo: Saraiva 2012; p. 175.

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Diniz D. O que é deficiência. São Paulo: Brasiliense, 2010; p. 17; Bezerra MF. Acessibilidade ao trabalho: a inserção do deficiente no mercado de trabalho. RDT 2008; 34(130): 167.

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Stanford Encyclopedia of Philosophy. Disability: definitions, models, experience. Available from: http://plato.stanford.edu/entries/disability/. Access 26 Sept. 2014.

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Diniz D. O que é deficiência. São Paulo: Brasiliense 2010; p. 16.

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Hutchison T. The classification of disability. Arch Dis Child 1995; 73: 91.

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Amiralian MLT, Pinto, EB, Ghirardi MIG, Lichtig I, Masini, EFS, Pasqualin L. The concept of disabilty. Rev Saúde Pública 2000; 34(1): 98.

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World Health Organization. International classification of impairments, disabilities, and handicaps: a manual of classification relating to the consequences of disease. Geneva: WHO 1980. Available from: http://whqlibdoc.who.int/publications/1980/9241541261_eng.pdf. Access: 30 Sept. 2014.

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Stanford Encyclopedia of Philosophy. Disability: definitions, models, experience. Available from: http://plato.stanford.edu/entries/disability/. Access 26 Sept. 2014.

[13]

Diniz, D. O que é deficiência. São Paulo: Brasiliense 2010; p. 46.

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WHO. Towards a common language for functioning, disability and health. Geneva: WHO 2002; p. 2. Available from: http://www.who.int/classifications/icf/icfbeginnersguide.pdf?ua=1. Access: 02 Oct. 2014. For a practical manual see: http://www.who.int/classifications/drafticfpractical manual2.pdf?ua=1.

[15]

Vall J, Costa CMC, Pereira LF, Friesen TT. Application of International Classification of Functioning, disability and Health (ICF) in individuals with spinal cord injury. Arq Neuropsiquiatr 2011; 69(3): 514.

[16]

Dhanda A. Constructing a new human rights lexicon: Convention on the Rights of Persons with Disabilities. SUR 2008; 5(8): 45.

[17]

Diniz D, Barbosa L, Santos WR. Disability, human rights and justice. SUR 2009; 6(11): 61.

[18]

Ruaro JA, Ruaro MB, Souza DE, Fréz AR, Guerra RO. An overview and profile of the ICF’s use in Brazil – a decade of history. Rev Bras Fisioter 2012; 16(6): 459.

[19]

Brazil. 1st National Report of the Federative Republic of Brazil on Fulfillment of the Provisions of the Convention on the Rights of Disabled People. Available from: http://www.pessoacomdeficiencia. gov.br/app/sites/default/files/arquivos/%5Bfield_generico_imagens-filefield-description%5D_31.pdf. Access: 24 Sept. 2014.

[20]

IBGE. Censo 2010. Available from: http://censo2010.ibge.gov.br/materiais/guia-do-censo/glossario. Access: 25 Sept. 2014.

[21]

Sen A. Desigualdade reexaminada. Rio de Janeiro: Record 2001; pp. 31-47.

[22]

Rawls J. A Theory of Justice. Cambridge: Harvard University Press 1999; p. 118.

[23]

Sen A. A ideia de justiça. São Paulo: Companhia das Letras 2011; pp. 39-45.

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[24]

Sen A. A ideia de justiça. São Paulo: Companhia das Letras 2011; pp. 44-45.

[25]

Sen A. What do we want from a theory of justice? Journal of Philosophy 2006; 103(5): 217.

[26]

Sen A. What do we want from a theory of justice? Journal of Philosophy 2006; 103(5): 217.

[27]

Rawls J. A Theory of Justice. Cambridge: Harvard University Press 1999; p. 53.

[28]

Sen A. What do we want from a theory of justice? Journal of Philosophy 2006; 103(5): 230.

[29]

Sen A. A ideia de justiça. São Paulo: Companhia das Letras 2011; p. 154.

[30]

Rawls J. A Theory of Justice. Cambridge: Harvard University Press 1999; pp. 57-65.

[31]

Rawls J. A Theory of Justice. Cambridge: Harvard University Press 1999; pp. 87-88.

[32]

For deep analysis see Arneson R. Egalitarianism. The Stanford Encyclopedia of Philosophy 2013. Available from: http://plato.stanford.edu/archives/sum2013/entries/egalitarianism/. Access: 16 Oct. 2014; Sen A. Desigualdade reexaminada. Rio de Janeiro: Record 2001.

[33]

Sen A. What do we want from a theory of justice? Journal of Philosophy 2006; 103(5): 230.

PART III INDIGENOUS PEOPLES

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CHAPTER 6

On the Rights of Indigenous Peoples in Latin America J. Alberto del Real Alcalá Department of Criminal Law, Legal Philosophy, Moral Philosophy & Philosophy, Faculty of Law and Social Science, ‘Gregorio Peces-Barba’ Observatory for Human Rights and Democracy, University of Jaén, 23071 Jaén, Spain Abstract: In this chapter, I will examine the transcendence of the constitutional value of cultural plurality in the design of the hallmarks of the new model of the Plurinational State introduced in Bolivia's Constitution: the legislative, executive, legal and electoral bodies and the State's institutional framework. I refer to these manifestations of cultural plurality, which are characteristic of the plurinational State, as ‘organic and institutional plurinationality’. Specifically, I analyze the ‘constitutional expressions’ of cultural plurality in the model of democracy and political representation, territorial organization, the legal system and constitutional justice and the social and economic model of State as they are set out in Bolivia's Constitution.

Keywords: Constitution of Bolivia, Cultural plurality, Indigenous nations and peoples, National plurality, Vulnerable groups. 1. INDIGENOUS NATIONS AND PEOPLES: FROM MARGINALISATION TO PROMINENCE IN THE CONSTITUTION AND THE STATE The reinforcement of cultural plurality is directly linked to the decentralisation processes that have been operating in the Constitutional State [1] since the last decades of the 20th century both in Western Europe [2] and Latin America [3], as has occurred in Bolivia. The decentralisation processes have taken place with their own specific singularities in each country, given that they have always occurred to the same extent and with the same intensity [4]. In Bolivia, the decentralisation process has enabled the social, political and constitutional ‘visibility’ of the indigenous nations and peoples who make up part of the country and constitute a sizeable portion of the population. Corresponding author J. Alberto del Real Alcalá: Department of Criminal Law, Legal Philosophy, Moral Philosophy & Philosophy, Faculty of Law and Social Science, ‘Gregorio Peces-Barba’ Observatory for Human Rights and Democracy, University of Jaén, 23071 Jaén, Spain; Tel: 0034 953 212707; Fax: 0034 953 211905; E-mail: [email protected] *

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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However, the decentralisation processes in operation today are not an ex novo phenomenon. Rather, they are a continuation of the anti-centralist tradition that took shape in the 19th century, to which I refer below very briefly, outlining the main aspects. In this sense, the decentralisation processes that have recognised cultural plurality in civil society and confirmed them in State institutions have always rivalled with the unification/centralisation of the State that took place after the French Revolution. It should be remembered that the State that emerged after that period was born Jacobin, as opposed to Girondin [5]. As such, it emerged in pursuit of political centralisation and legal codification. Although centralisation (Jacobinism) and decentralisation have had their supporters and detractors over time, towards the end of the 20th century there appears to be a certain consensus in Europe on the benefits that decentralisation of the Constitutional State might have for the citizenship. The consensus was subsequently transferred to the Latin American Republics that declared their independence. These benefits, as well as the currents of federalism, were already being put forward in Western Europe by such authors as Alexis de Tocqueville, Lord Acton and J. Stuart Mill, to whom I shall make a brief reference. It should be remembered that the anti-centralist position of Tocqueville led him to criticise the concentration of power in a single seat, as it emerged from the French Revolution [6]. He asserted that ‘extreme centralisation of government ultimately enervates [civil] society, and thus after a length of time weakens the government itself’, and ends by harming citizens' rights [7]. The Frenchman detested the notion of ‘uniformity’ that assimilates people to each other, proclaimed by an absolute power susceptible of imposing the majority, and which he defines as ‘the tyranny of the majority’ [8]. ‘In the long run, it is government by a single individual that always has the inevitable effect of making people both similar to one another and mutually indifferent to the fate of their fellows’; in fact, owing to the Revolution of 1789 ‘it would seem that every man’ who lived in France ‘was exactly like everyone else’, like a ‘uniform multitude’ [9]. Toqueville rejected ‘the constant tendency of these nations’ that embrace centralism ‘to concentrate all the strength of the government in the hands of only one power which directly represents the people, because beyond the people nothing is to be perceived but a mass of equal individuals confounded together’ [10]. The French author maintained the thesis (contrary to popular belief in his day) that centralism ‘was not a triumph of the Revolution’, but ‘on the contrary, it was a product of the Ancien Régime, and, I would add, the only portion of the political constitution of the Ancien Régime that survived the Revolution’: ‘it was

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the only one that could adapt to the new social state that the Revolution created’ [11]. Lord Acton also defended a decentralised State, although from a liberal position. This author criticises the uniform State produced by applying the principle of nationalities, when he considers that ‘the best State is that in which different [cultural] nationalities live side by side in freedom’. In other words, he refers to the plurinational/pluricultural State, because ‘the coexistence of several nations under the same State is a test, as well as the best security of its freedom’. In this respect, he conceives the plurinational/pluricultural State as ‘a State of greater advancement than that of national unity’ and envisages it as ‘the ideal of modern liberalism’ [12]. The reason he alleges is that ‘where political and national boundaries coincide, society ceases to advance, and nations relapse into a condition corresponding to that of men who renounce intercourse with their fellow men’ [13]. Acton's defence of the non-centralised State is founded on the idea that the principle of diversity promotes freedom, and freedom, in turn, promotes diversity. Thus, the plurinational/pluricultural State ‘provides against servility’, insofar as it permits a ‘balancing interests, multiplying associations, and giving to the subject the restraint and support of a combined opinion’, where ‘diversity in the same State is a firm barrier against the intrusion of the government’ [14]. In short, the anti-centralist position of the English author is ‘federalist’ and appears as an alternative to the Jacobin (centralist) State, advocating the preservation of diversity within the State via a ‘federalism’ that apprehends all the national/cultural plurality contained in it [15]. Like Tocqueville and Acton, John Stuart Mill also fought state centralism. He did so from the principle that praises ‘diversity [that] is not an evil but [quite to the contrary], a good’. This is the perspective from which ‘men's modes of [individual] action’ should be viewed [16]. As a consequence of the aforementioned principle, it is socially ‘useful’ that there ‘should be different opinions, so is it that there should be different experiments of living; that free scope should be given to varieties of [individual] character, short of injury to others’ Mill [17]. The three positions described above may be considered to represent the decentralising positions that emerged in Western Europe in the 19th century. To a large extent, the political decentralisation processes that affected rights, and which became widespread in the 20th century, were based (and developed) on the criteria and principles that the aforementioned views had defended, from the standpoint of modern liberalism, one century earlier.

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However, decentralisation in the liberal State was not a success in the 19th century, and the State was strongly centralised. Nonetheless, a century later, the result has been very different: decentralisation has involved moral and constitutional-legal values, and generated new subjective rights that seek to increase citizens' wellbeing. To achieve this, decentralisation has promoted changes not only in ordinary legislation but also constitutional reform and has even inspired the drafting of new Constitutions. By this I mean to say that, in the 20th century, decentralisation clearly had an impact on the theory of rights, to the point that we cannot their deeper historical causes unless we take decentralisation into consideration. The reason for this is the fact that decentralisation forms a part of the historic process of the broadening and specification of rights [18]. In this respect, the transcendence of the legal change and regulatory framework brought about by the decentralisation processes created rights for the citizenship that were normally not an isolated occurrence in the legal system. Rather, they took shape via a series of Constitutional norms and other legal texts of a general and territorial nature, as well as multiple interconnected juridical categories. Of these, I will mention ‘legal values’ and the ‘subjective rights’ that seek to implement them. Precisely, in line with the above explanation, the decentralisation processes that lead to rights are often connected with the most important values in the legal system. These constitutional values have regulatory value [19]. And the constitutional values consist –as Peces-Barba has indicated– in regulations ‘that indicate the goals to be attained, leaving the choice of the most adequate and effective channels to the judicial decision-makers. Nonetheless, the Constitution indicates some of these channels: via its configuration as a constitutional principle; via fundamental rights; the primary duties of the government authorities; and in the relationships between individuals, via the organisation of the institutional authorities’ [20]. From all the above it can be inferred that there is a conceptual connection between constitutional values and the other juridical categories we have mentioned, insofar as the latter constitute the mechanisms for carrying out the former [21]. However, this conceptual connection is what operates to form a significant bond between the rights generated by decentralisation and the legal system's main legal values. Moreover, with regards to rights (and, therefore, to the rights of decentralisation), said conceptual connection extends to the Constitution, which recognises the rights, and the Constitutional State that cannot be conceived of without them [22]. At the European level, for instance, this took place in the case of Spain, whose decentralisation process, which is included in the constitutional text and developed primarily in Title VIII of Spain's Constitution (SC), is part of

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the constitutional values that are upheld in the Fundamental Law, as proclaimed in Article 10.1 SC: ‘The dignity of the person, the inviolable rights that are inherent, the free development of the personality … are the foundation for political order and social peace’ [23]. As another example, in the context of Latin America, this occurred in Bolivia's Constitution of 2009. Bolivia's decentralisation process is far-reaching and underpinned directly by the value of human dignity, both of individuals (personal dignity) and of groups (collective dignity); and on the constituent political authority's recognition of cultural plurality and cultural plurality as the new, higher legal-constitutional values of the Constitution and the rest of the legal system. The connection between laws and higher values is reinforced in Bolivia's constitutional text from the moment that personal dignity and collective dignity (of the indigenous farmer nations and people, and the intercultural and AfroBolivian communities) have been legally defined by the constituent authority as an ‘inviolable’ principle. Moreover, respecting and protecting them are one of the State's fundamental duties. Personal dignity and collective dignity include, as part of the moral underpinnings protected by the Constitution, a series of ‘ethical and moral principles of a plural society’, contributed by Bolivia's indigenous farmer nations and people, to which I will refer. They lie at the heart of the values of national and cultural plurality. Recognised by the Fundamental Law, they are ‘assumed’ by the Constitutional State as its own values, with the commitment to protect and promote them. This means that the ethical and moral dimension presented by cultural and cultural plurality raise these constitutional values to the main ‘driving force for equality’ and an important pillar of the new ‘justice system’ (pluricultural and plurinational justice) that Bolivia's new Constitution seeks to implement. The constitutional values that underpin the rights of decentralisation, which are the rights of cultural diversity, are supplemented by other values anchored in regulation via the constitutional value of liberty (such as positive liberty) and the constitutional value of equality (as in equality as differentiation). They replace mere negative liberty and simple equality as the general rule that was once proclaimed by a strongly centralised republican State. Naturally, the moral and legal scope of Bolivia's values of dignity and cultural/national plurality do not detract from their transcendence as ‘political values’ assumed by the constituent authority to implement them via the constitutional text, design the State's institutions and draft the Constitution's norms [24]. Thus, the aforementioned moral and legal-constitutional values acquire foundational transcendence, not an ordinary transcendence, with regards

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to Bolivia's Constitution, the Bolivian State and the country as such, as we shall mention next. 2. REFOUNDING THE LATIN AMERICAN CONSTITUTIONS IN TERMS OF CULTURAL DIVERSITY The new Constitution approved in Bolivia on the 25th of January 2009 entered into force shortly after, on the 7th of February. It introduced profound changes to the formerly republican State and led the country into the 21st century with the institutions of its time [25] and constitutional mechanisms based on Bolivia's own values, principles, fundamental rights and institutions [26]. The ‘far-reaching dimension’ of the change [27] –direct legislative value and a system of constitutional justice (and control) surrounding a core catalogue of fundamental rights– is a novel aspect of Bolivia's new Constitution. The 2009 Constitution builds a new Constitutional State model based on elements of modern constitutionalism [28]. It is a State based primarily on the (moral, political and legal) value of ‘cultural plurality’. Apart from the constitutional recognition of 36 indigenous farmer nations and people –without forgetting Bolivia on the whole as a nation– the ‘recognition of Bolivia as a nation of nations’ [29] has led to a profound restructuring of political institutions and the powers of the state at all levels of government, to the point that we could say that the Constitution of 2009 reshaped Bolivia as a country. In the current wording of Bolivia's Constitution, complying with the multiple objectives pursued by the Plurinational State also requires the country to become a social State, as opposed to a liberal or neo-liberal republican State [30]. In other words, it must become a ‘Good Life State’. Article 8.1 PCS (Political Constitution of the State) states that: ‘The State assumes and promotes […] suma qamaña or the common good life as a conceptual – and original –variation on Europe's welfare state in a Bolivian context. This Report focuses on the profound constitutional changes brought about by the Political Constitution of the Plurinational State of Bolivia 2009 (hereinafter referred to as the PCS), which have caused a shift in the country's former model of State. I examine two main themes, in particular: On the one hand, I address the significant relevance given to cultural plurality in Bolivia's Constitution of 2009, to the point that moral, political and legal pluralities become the ‘basic founding fact’ of the (Plurinational and Pluricultural) State of Bolivia and the Constitution (Section II).

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On the other hand, in section III I will examine the transcendence of the constitutional value of cultural plurality in the design of the hallmarks of the new model of the Plurinational State introduced by the current Constitution: the legislative, executive, legal and electoral bodies and the State's institutional framework. I refer to these manifestations of cultural plurality, which are characteristic of the Plurinational State, as ‘organic and institutional plurinationality’. Specifically, I analyze the ‘constitutional expressions’ of cultural plurality in the model of democracy and political representation (section III.1), territorial organization (section III.2), the legal system and constitutional justice (section III.3) and the social and economic model of State (section III.4) as they are set out in Bolivia's Constitution. One new aspect of Bolivia's Constitution of 2009, is the inclusion of cultural plurality is one of the most important and transcendent moral, political and legal values of the Fundamental Law. The constitutional relevance of cultural plurality is so great that we could draw the conclusion that it is included in the Constitution as the ‘basic founding fact’ of the (new model for the) Constitutional State and even the Constitution. Cultural plurality pervades the State's institutional design at every level of authority. To a large extent, control over the constitutionality of this new model for the Constitutional State must be achieved by reference to a ‘sheaf of fundamental rights’ whose background is expressly one of cultural plurality. Let us examine what this means. Firstly, it can be inferred from a perusal of the 2009 PCS that cultural plurality is the ‘core connection’ between the foundation of Bolivia's Constitution and the model of State it establishes. The collective statement in the Preamble to the Constitution gives an early indication of the ‘core’ nature of cultural plurality: ‘The Bolivian people, of plural composition since the beginning of time’; ‘We populated this sacred Mother Earth with different faces, and since then we have understood the current plurality of all things and our diversity as beings and cultures. That is how we defined our people, and we never understood racism until we experienced it in the terrible days of colonization’. The Bolivian people, […] built a new State …with respect to the economic, social, legal, political and cultural plurality of the habitants of this land.’ Moreover, developing the constitutional statement along the same lines, the core transcendence of cultural plurality is evident in the fact that it is placed in Part One of the PCS on the Fundamental Bases of the State. Rights, Duties and Guarantees; Title I (Fundamental Bases of the State), Section II (Principles, Aims and Values of the State). Secondly, in coherence with the above, cultural plurality runs through the entire PCS, evidencing a ‘mainstreaming’ that has an impact on every norm in Bolivia's

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legal system, the entire political and institutional design, and even the fundamental rights. This means that cultural plurality informs constitutional law in its entirety, with no exception. The Constitution is bound by cultural plurality in its ‘moral’ base, ‘spirit’ and ‘objectives’; its ‘institutional’ and ‘political’ base; the ‘system of rights’; the ‘duties’ and ‘actions’ of government authorities, and relationships between individuals; and, of course, ‘the constitutional justice system’. The expressions of cultural plurality in the Constitution are made extensive to all the most important institutions of the reshaped State. In fact, many Bolivian institutions added ‘plurinational’ to their names. Such is the case of the official name of the State, the Legislative Assembly, the Constitutional Court (the Plurinational Constitutional Court, hereinafter referred to as the PCC), and so on. The Preamble is not the only indication of the mainstreaming nature of the moral, political, legal and constitutional value of cultural plurality in the Constitution, however. Article 1 PCS defines cultural plurality as a decisive element of the model of State established by the new Fundamental Law: ‘Bolivia is constituted in a Social Unitary State of Plurinational Communitarian Law, […] intercultural, decentralized and with autonomies. Bolivia is founded on plurality and on […] legal, cultural and linguistic pluralism [among others], within the country's process of integration.’ Moreover, Article 98.I PCS explicitly stipulates that ‘Cultural diversity forms part of the essential foundation of the Plurinational Communitarian State’. It also states that ‘Interculturality (which will respect differences and under equal conditions) is the instrument of cohesion, and harmonious and balanced coexistence among all the peoples and nations that make up Bolivia.’ In this sense, cultural plurality, as an expression of cultural diversity in Bolivia, is deemed by the Constitution as a ‘strength’ to be made visible and not a weakness to be hidden (Article 98.II PCS), despite the problems that heterogeneity implies [31]. In any case, heterogeneity causes infinitely fewer problems than the failure to recognize civilian society as a whole owing to marginalization of a sector thereof. Thirdly, the core connection of cultural plurality with the Constitution's foundations and the way it is mainstreamed into every political, legal, social and economic sphere at all levels of the State is no trivial matter. In fact, it means that cultural plurality actually ‘pre-dates’ the State of Bolivia and the Constitution. This pre-existence is manifested in two main ways: one, in the ‘empirical root’ of cultural plurality; and two, in its ‘moral root’. The ‘empirical root’ of cultural plurality can be found in Bolivian civilian society, in the Bolivian people as a whole, and more specifically in the constitutive ethnic and cultural diversity that set it apart. In fact, Bolivia's heterogeneity became cultural plurality when it acquired political and institutional substance under the new Constitution.

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If the empirical root of cultural plurality is the ethnic and cultural heterogeneity of Bolivia's civilian society, its ‘moral root’ lies in the overarching value of the ‘human dignity’ of individuals (personal dignity) and groups (collective dignity) [32]. This fact is highly relevant, because it helps to distinguish prima facie who the ‘holders’ are of fundamental rights that are clearly rooted in cultural plurality, within the catalogue of rights recognized in the PCS. Outlining who are the holders of cultural plurality rights is not easy, however, especially with regards to collective groups. The Constitution does not provide a clear answer to the issue of ‘which groups come under the PCS’, for it states rather vaguely that they are the indigenous farmer nations and people, and the intercultural and Afro-Bolivian communities. Thus, strictly speaking, the PCS does not state clearly which are which. In the event of controversy and if there is no specific law that identifies them specifically, the vague wording would have to be decided by the Constitutional Court [33]. Fourth, if cultural plurality has a core connection to the foundations of Bolivia's Constitution and the model of State it establishes; is mainstreamed to every institution in the country at every level; and pre-dates the State and the Constitution owing to its empirical root (in the constitutive ethnic and cultural diversity of Bolivian civilian society) and moral root (in the overarching value of human dignity), we can only infer and conclude that cultural plurality is the ‘basic founding fact’ of the Bolivian State and Constitution, given the way it is set out in the PCS of 2009. Needless to say, cultural plurality, the crown jewel of Bolivia's Constitution, is the opposite value of the foundation of the preceding republican State [34]. The latter, as a one-nation State, was born as a universal liberal State underpinned by the ‘Staatsnation doctrine’ [35] or the liberal process of nation-building. However, it soon shifted to a ‘Kulturnation doctrine’ [36] of exclusion based on one culture and the marginalization of diversity, although cloaked in abstract-formal guise. Fifth, the ‘material content’ of cultural plurality as the basic founding fact of the Bolivian State and Constitution is explicitly stated in the constitutional text. With regards to its moral dimension, for instance, it includes the ‘ethical and moral principles of plural society’ recognized in the Founding Law, which the State ‘assumes’ as its own and undertakes to ‘promote’ (Article 8.I. PCS: ‘ama qhilla, ama llulla, ama suwa (don't be lazy, don't be a liar, don't be a thief), suma qamaña (to live well), ñandereko (harmonious life), teko kavi (good life), ivi maraei (land without evil) and qhapaj ñan (noble life or path).’ Other political principles that underpin the State and are related to the value of cultural plurality and its moral dimension are (Article 8.II PCS): ‘unity’, ‘inclusion’, ‘dignity’, ‘harmony’, ‘social equality’, ‘common well-being’ and ‘social justice’. In any case, the constitutional

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notion of the common ‘good life’ stands out in the moral content of cultural plurality as the key concept around which the Bolivian model of the social State is built, as set out in the PCS. Hence the close ‘structural connection’ between the Plurinational State and the social State established by Bolivia's Constitution. Naturally, the ethical and moral content of cultural plurality shows that, as a constitutional value, it is also a ‘driving force for equality’ in Bolivia. As such, it is one of the salient pillars of the new ‘justice system’ (plurinational and intercultural) that the PCS seeks to establish. In turn, the justice system is the main source of legitimacy of the Plurinational State that is set out in the constitutional text. This fact provides further evidence that the conceptual, institutional and constitutional design of the plurinational model of State erected in Bolivia can only be carried out via a social State. In sixth place, lastly, cultural plurality is specially protected by the PCS as the basic founding fact that underpins the country's renewal. There are two types of protection. One is a ‘blanket protection’ insofar as cultural plurality benefits from the protection of human dignity provided by the Constitution, due to its material connection to the overarching value of human dignity (Article 22 PCS: ‘The dignity and freedom of the person are inviolable. Respecting and protecting them is the fundamental duty of the State’). However, it is also a ‘specific protection’, unique to cultural plurality as an essential constitutional value, according to Articles 98.III, 99.I and 100.I of the PCS. 3. THE IMPORTANCE OF CULTURAL DIVERSITY IN DESIGNING THE NEW STATE MODEL IN LATIN AMERICA In view of the characteristics examined above, the far-reaching nature of cultural plurality in Bolivia's Constitution of 2009 is deployed throughout the entire constitutional text in the following ‘categories’, as: a. A ‘basic founding fact’ of the (new model of) State and the Constitution, as we have seen in the preceding section. b. A ‘moral value’ that motivated the constituent authority to draft a new Constitution. c. A ‘political value’ assumed by the constituent (political) authority, and which the latter used to design the State institutions in the current Constitution. Cultural plurality configures and conditions the manner in which the State has been organized at each of the institutional levels envisaged. d. A ‘higher legal value’ that pervades the heterogeneous configuration of Bolivia's entire legal system and also the constitutional justice system set out in the Constitution (Peces-Barba, 1987a). The fact that cultural plurality is a higher legal value in Bolivia's legal system allows it to generate a sheaf of

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fundamental rights that are integrated by the Fundamental Law [37]. The main feature of the fundamental rights is that they share a common background of cultural plurality. e. A ‘constitutional principle’ that will govern the actions of Bolivia's government authorities [38]. f. The citizenship's ‘subjective rights’ (fundamental constitutional rights), implemented as individual and collective fundamental rights based on the higher moral and legal value of cultural plurality [39]. Special mention should be made here of the rights of vulnerable groups such as the indigenous farmer nations and people, which are specifically recognized. g. A ‘legal duty’ imposed on government authorities and the relations between individuals by the Constitution [40], in favor of the citizens who benefit from the plurinational fundamental rights that are protected in the new Fundamental Law [41]. The above examples are an indication of the way the constitutional value of cultural plurality is mainstreamed throughout Bolivia's Constitution. It has an impact on State bodies and every political, legal, social and economic institution in the country, regardless of their size and at all levels. As I mentioned in the beginning of this paper, I have described these organic and institutional expressions of cultural plurality as ‘organic and institutional national pluralism’. They are what make the model of Plurinational State that has operated in Bolivia since the adoption of the PCS of 2009 so unique. To distinguish and clarify them will be decisive in the identification of the elements that are intrinsic to that model. I make a very brief analysis of this below, given the spatial limitations of this paper. A) Cultural Diversity in the Democratic Model: ‘Plurinational Democracy’ (Representative, Communitarian and Intercultural). The expression of cultural plurality in the participation and composition of State Bodies and in political representation is related to the constitutional laws that make the composition of said (legislative, executive, legal and electoral) Bodies plurinational or the political representation of the citizenship that makes up said Bodies, respectively. The institutionalization of cultural plurality in Bolivia has an impact on the ‘Government System’ (Chapter III, Title I, Part One), which stipulates in Article 11.I PCS that ‘The Republic of Bolivia adopts a democratic, participative, representative and communitarian form of government, with equal conditions for men and women’. Here, the Plurinational State includes two methods of democratic representation. On the one hand, a representative method based on

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universal, direct and secret suffrage, as stipulated in Article 11.II.2 PCS (Democratic representation). On the other, the method of communitarian representation, in the spheres that envisage specific representation for the indigenous farmer nations and people – and similar communities – via the ‘election, appointment or nomination of authorities and representatives according to the norms and procedures of the indigenous farmer nations and people, according to law’, as stipulated in Article 11.II.3 PCS (Communitarian democracy). This gives rise to intercultural political representation, which includes the procedures of universal suffrage and communitarian representation, depending on the distribution of spheres in the PCS. Needless to say, the democratic methods set out in the PCS are a key element of cultural plurality in the State of Bolivia. B) Cultural Diversity in the Territorial Model: the ‘State of Autonomies’. This expression of cultural plurality is related to the constitutional laws that institutionalise cultural plurality in the territorial framework of the State by decentralising political authority. It is the result of the State of Autonomies model adopted by Bolivia, which leads to government at multiple levels. The institutionalization of cultural plurality inspired and generated the ‘territorial framework’ adopted by Bolivia in the Constitution of 2009. The Constitution gives the central authority the mandate to institutionalize cultural plurality at territorial level via the decentralized distribution of political power at various levels according to the ‘list of competences’ set out in the Constitution [42]. Thus, Article 1 PCS stipulates that: ‘Bolivia is constituted in a Social Unitary State, Plurinational, intercultural, decentralized and with autonomies’. This implies the adoption of a ‘new model of territorial State’ that is more in line with the ‘model of Plurinational State’ enshrined in the Constitution. Strictly speaking, it means that Bolivia must undertake a serious transition from ‘a centralized neo-liberal Unitary State’ inherited from the 19th century, typical of the initial uniform liberalism of that period [43], to a decentralized (unitary) State more in line with the distribution of political power that gained strength as a democratizing element in the last quarter of the 20th century. Part Three of the PCS (Territorial Structure and Organization of the State) is dedicated to this question. Clearly, it is a cornerstone of the Constitution. The territorial model of ‘State of Autonomies’ adopted by Bolivia is rooted in Article 269.I PCS, which defines the territorial framework of the State in terms of cultural plurality. The PCS stipulates that ‘Bolivia is organized territorially into departments, provinces, municipalities and indigenous farmer territories’. Said territorial departments or ‘territorial units’ (as they are called in Article 269.II

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PCS) are created, modified and delimited by the democratic will of their inhabitants, pursuant to the terms and conditions stipulated in the Constitution and the law. The Constitution and Law No 31, of the 19th of July 2010, the ‘Andrés Ibáñez’ Framework Law on the Autonomies and Decentralization (hereinafter referred to as the FLAD), guarantees and implements the four levels of Bolivia's State of Autonomies: the Departmental, Regional, Municipal, and Indigenous Farmer levels. The autonomous and regional departments and the autonomies of the indigenous originary farmer nations and people may come under a Statute of Autonomy, whereas the municipalities base their autonomy on an Organic Charter. All of these come under the framework of the Constitution. From a material standpoint, the functions of government authority, decentralisation of political power and setting up a multi-level government in Bolivia is organised according to the distribution of competences stipulated in the Constitution and assumed by the central government and autonomic bodies [44]. The PCS classifies the competences into four different types (Articles 297-305 PCS): ‘Prerogative’ (competences of the central level of State, which cannot be transferred or delegated); ‘exclusive’ (pertaining to certain areas of the central and autonomic governments that can be transferred and delegated); ‘concurrent’ competences exercised in parallel by the State and the autonomic bodies; and ‘shared’ by the State (basic legislation) and the autonomic bodies (implementing legislation). In all, the PCS (February, 2009) recognises 56 competences for the decentralised autonomous bodies (36 exclusive and 23 concurrent and shared competences). However, the FLAD extended the list by adding 50 new competences for the decentralised bodies in July, 2010. C) Cultural Diversity in the Justice Model: ‘Legal Pluralism’. Here I refer to the constitutional norms that institutionalise cultural plurality in the State legal system and the constitutional legal system. The most important impact of cultural plurality on the legal system is the constitutional principle of ‘legal pluralism’ [45]; the institutionalisation of a justice system based on cultural plurality; and the legal operators' obligation to integrate ‘interculturality’ as a criterion for interpreting legal norms [46]. Legal pluralism is stipulated in Article 1 of the PCS: ‘Bolivia is constituted in a Social Unitary State of Plurinational Communitarian Law, free, independent, sovereign, democratic, intercultural, decentralized and with autonomies. Bolivia is founded on plurality and on political, economic, legal, cultural and linguistic pluralism, within the integrating process of the country’. Legal pluralism is also stipulated in Article 179.I PCS, which states that although Bolivia has a single

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legal system, there are several jurisdictions within it, all on the same hierarchical level: ordinary, agro-environmental, specialized, and the indigenous farmer jurisdiction (which is exercised by their own authorities, elected according to their uses and customs, and with their own institutional rules of procedure). Strictly speaking, Bolivia has ‘one’ unitary legal system, although it comprises several jurisdictions at the same hierarchical level of importance. In this respect, legal pluralism (in the shape of several jurisdictions) operates at a ‘subconstitutional level’. However, at constitutional level, Bolivia has a single legal system with the constitutional justice system at the apex, represented by a catalogue of fundamental rights that are recognized in the PCS. Therefore, the task of standardizing and giving coherence to Bolivia's legal system is underpinned, in last instance, by the case-law emanating from the Plurinational Constitutional Court (PCC). The seven magistrates who make up the CCP's constitutional justice system are elected according to universal suffrage by a plural civilian society. This should facilitate the indigenous farmer nations and people's access to the highest body of the constitutional justice, although the law ensures the presence of at least two of them. Obviously, the PCC is the most important of all Bolivia's government institutions, after the Plurinational Legislative Assembly. Undoubtedly it will play a decisive role in building and consolidating the country's renewal. D) Cultural Diversity in the Social and Economic Model: the ‘Communitarian Economy’ as an Element of a Plural Economy. This expression of cultural plurality is related to the constitutional norms that institutionalise cultural plurality at the social and economic level. In other words, the ‘communitarian economy’ is the typical and habitual method of economic production of the indigenous originary farmer nations and people. The fact that the PCS attributes value to the communitarian economy as part of the content of the plural economic (and social) model means setting up a plurinational social State in Bolivia based on the core notion of the common ‘good life’. It should borne in mind that cultural plurality also affects the social model established by the Constitution of 2009 by defining the notion of ‘plural economy’ as a specific component of Bolivia's Plurinational State. It is a specific component that requires ‘building a paradigm of the good life’ for the community as a whole [47]. The impact of cultural plurality on the social model defined by the notion of the ‘good life’ makes sense in the light of the intimate connection between the following four factors: the population's cultural diversity; the effective limited extension of the rights of people who are cultural different than the majority (i.e. members of the indigenous originary farmer nations and people);

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the indigenous peoples' very limited effective enjoyment of the benefits of the State's public services [48]; and the attribution of (public) ‘value’ to the indigenous originary farmer nations and peoples' traditional models of economic management. Several constitutional norms itemise what constitutes social and economic cultural plurality. Thus, Article 306.I and II PCS recognise the indigenous peoples' ‘communitarian economy’ as part of the good life economy within the country's economic organisation and an integral part of the latter: The Bolivian economic model is plural and seeks to improve the quality of life and good life of all Bolivians’. Paragraph II provides constitutional protection for the ‘plural economy’ ‘constituted by forms of communitarian economic organisation’ that ‘complete’ the collective good life. Thus, a close link is established between the economy of indigenous people and the ‘economic model of the good life’ (Article 313 PCS). The Constitution (Article 307 PCS) ensures that ‘The State will recognise, respect, protect and promote communitarian economic organisation’ consisting in ‘the systems of production and reproduction of public life, founded on the principles and visions of the indigenous farmer nations and people’. Thus, the Bolivian State, based on the PCS, is conceived to include a ‘plural economic order’ that integrates a social market economy and a communitarian economy. 4. CONCLUSION In conclusion, Bolivia's Constitution of 2009 raises cultural plurality to the status of a ‘basic founding fact’ that underpins the country's renewal. More precisely, the country is reshaped as a ‘Plurinational State’. Moreover, Bolivia's new constitution establishes a close connection between the model of Plurinational State and social model to which it aspires, in terms of structure and objectives. They are both presented as essential models in modern Bolivia. In any event, it is worth stressing the fact that Bolivia's Constitution of 2009 is not just one more constitution in the Andean country's history. Quite to the contrary, it represents a historical change in Bolivia; a task that involves two types of profound changes in the State's framework that were never attempted before: a shift from the former republican Jacobin State [49] to a ‘plurinational State’; and a shift from the former neoliberal State to a ‘social State’ based on the constitutional notion of a collective ‘good life’. Because it involves far-reaching change, it could be asserted that Bolivia's Constitutional of 2009 causes the‘refounding’ of Bolivia as a country. It is a highly laudable task on a titanic scale that is fraught with difficulties. We can only wish the Bolivians the best of luck.

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Cultural plurality is a core, foundational, mainstreaming-institutional value in the Constitution of 2009 and the model of State it establishes. Protecting it should be a prime endeavour of Bolivia's authorities and every political and judicial decision-maker in the country, and of the social and economic agents as well. It is true that the country has the appropriate legal and constitutional mechanisms to undertake the task, but the Plurinational Constitutional Court will undoubtedly play a significant role in protecting the moral, political and legal value of cultural plurality. Furthermore, the PCC must ensure that the numerous constitutional expressions of cultural plurality in every field are not infringed in their enactment, execution and interpretation. It should be borne in mind that due to the way the PCS is structured, infringing cultural plurality would mean a violation of the spirit of the Constitution and the intercultural, social and decentralized State chosen by the people of Bolivia in democratic elections. It is they who decided to give institutional substance to the Plurinational State of Bolivia, as their country is officially known. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

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PART IV WOMEN

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Gender Equity and Development: Women’s Rights Maria Olga Sánchez Martínez* Faculty of Law, University of Cantabria, Santander, Spain Abstract: The Human Development Report, 2000, conceives Human Rights as an intrinsic part of development, and development as a means to make Human Rights a reality. Before that, in 1995, it had already been pointed out that without equity of gender, human development would be seriously threatened. Therefore, without gender equity and an effective system of recognition, implementation and guarantee of women´s right there cannot be real progress, social justice and development. The problem regarding the rights of women is not a domestic but a universal reality which requires resources capable of transcending prejudices based on national, cultural, race, religious or social traditions. Definitely the promotion of women´s rights should no longer be regarded as a women´s issue but as a huge problem of social justice, that implies respect to the human dignity and as an obstacle to progress that affects both women and men.

Keywords: Development, Discrimination, Equity, Gender perspective, Global perspective, Human dignity, Human rights, Progress, Social justice, Women´s rights. 1. HUMAN RIGHTS AND DEVELOPMENT The movement for women´s emancipation has been recognized as the biggest and perhaps the only successful revolution of our time [1]. Some people have referred to the XX century as the Century of Women [2]. Surely, the social, cultural and normative development in recent times has meant a transformation in gender relations not seen before at international level, but this reality coexists with other that reveals glass ceilings, salary gaps, the fact that an estimated 70% of the world population living in poverty are women, or that they are the ones who suffer the most from unpunished violence; and furthermore, the fact that there is no country in the world where there are equal opportunities for women and men. Corresponding author María Olga Sánchez Martinez: Faculty of Law, University of Cantabria, Santander, Spain; Tel: 0034 942 20 12 34; Fax: 0034 942 20 12 13; E-mail: [email protected] *

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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Those statements about the XX century indicate that we have knocked down many walls, but in the XXI century we need to build up bridges that allow us to dream with a new name for this century: the Century of People, men and women equal, all different but capable of building their own lives without any other conditioning factors than those freely chosen, being aware of the fact that together with choices we take opportunities and challenges, but also difficulties, effort, sacrifice and even resignation. Progress in women´s rights, in the rights of all human beings, is not always a predictable process, it must be carefully observed. Experience has proved that not all voices speak as a single one, there are different views, different discourses. Judith Butler says that in life, we are all amateur philosophers with a preconceived vision of the world; a personal idea of what is right, what is fair or what is not, and what is necessary and sufficient for our adequate conditions of life [3]. Taking responsibility for shaping a collective future implies hearing all those voices; it also implies negotiation and cooperation rather than confrontation, and being able to combine theory and action to gain an efficient social transformation towards a sustainable progress. In order to achieve such social transformation, it is necessary to analyze, among other aspects, whether the role that women and men play in society is the most adequate to advance towards the construction of a more equitable world. Provided the fact that no theory of social justice nowadays is segregated from the language of Human Rights, and that a society cannot be considered equitable without acknowledging and guaranteeing human rights, the exercise of the rights of women deserves special attention. The connection of human rights and gender equity with development has been made clear from many international institutions. The Human Development Report of the year 2000 shows that the conception of human rights and human development share the goal of guaranteeing freedom, well-being and dignity to all human beings and also, share the mission of making possible that Human Rights become an universal reality in the XXI century. The report conceives Human Rights as an inherent part of development, and development as a means to make Human Rights a reality. If this connection between Human Rights and development was explicitly exposed in the year 2000, back in 1995, it had already been indicated that without equity of gender, human development would be seriously threatened. The report shows the vast difference among the capacities of women and their chances to exercise those capacities, it analyses the lack of recognition of female work, includes objectives aimed to provide equal opportunities for men and women and presents figures about gender to evaluate development [4].

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If we consider that those difficulties concerning women´s rights, and consequently human development, that were made public in 1995, still persist nowadays, then, claiming that human rights are a universal reality makes us face the need, not only the convenience, of dealing specifically with the rights of women in the global context of human rights. A brief historical review to the process of recognition of human rights shows clearly why we have to and must speak about the rights of women, and it shows that this can be useful to get a better chance of success when dealing with the challenges of the XXI century in the field of rights. 2. WOMEN´S EXCLUSION FROM HUMAN RIGHTS The foundations that will give way to the recognition of human rights are laid within modernity. The splitting of public and private scenarios, and the privileged, even exclusive, placement of each gender in a particular scenario shall determinate the future of the rights of women. The first model of human rights was based on categories which claimed to be universal, abstract and objective and showed a false universalization of a particular subject: the male and owner, excluding from its scope of action women and those who lacked property. The illustrated thought that explained the birth of the first human rights, those which men have just for the sake of existing, those of participating of a common and universal nature, were not the rights of women or other collectivities. It seems to be that the human condition of women was forgotten, and this thought was focused on sexual duality in order to deny the identity of the woman as a person subject of human rights. To illustrate this point, it is merely enough to recall some of those philosophers who gave support to the origin of human rights thinking: Locke, Rousseau or Kant. Locke criticized the position of Filmer when he tried to justify the absolute authority of the father over the family and the authority of the monarch over the people by appealing to divine disposition and to natural rights [5]. For Locke, there was not a natural right of dominion over the children for the simple sake of having bred them. Even supposing it were so, he states he would not give the father anything more than a shared dominion with the mother because no one can deny that the mother not only has an equal part, but a bigger part. If regarding the children, there is shared power and responsibility for both parents, in the matter of the relations between them, the husband and wife partnership is established through a voluntary pact between man and woman, without granting the husband the absolute power over the woman. Nonetheless, when the interests and shared properties are at stake, then the government naturally favors the man for being stronger and more capable [6]. Property, which is a condition for citizenship,

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autonomy and freedom, in Locke´s thinking, shall be responsibility of the male in a husband and wife partnership. Thus, while in the political society the natural dominion of the patriarch is denied, the same situation shall not take place within the family through the ruling of family property. For Rousseau, it is within the family where the good citizens are formed. But this role is reserved only for men. A woman can only be a good daughter, a good mother and a good wife. She shall not take the step to become a citizen despite all her excellent qualities. The great theorist of equality stated that men and women have the same organs, the same needs, and the same faculties, and that in everything that is not related to sex, a woman is like a man; or that one of the wonders of Nature is to have achieved two human beings so similar while creating them so differently. He also explains that one of the two beings must be active and strong and the other one passive and weak, or that the woman depends so much on men because of her wishes and her needs. So, it happens that her character and personality is very diverse and as a consequence, her education should be diverse too. In this sense, women´s education must be referred to men and it must be oriented to please men, be useful to them, be honored and loved by men, teach them when they are young, take care of them as adults, give them good advice, comfort them and make their lives kind and sweet, for she was made to accept man´s wishes and endure his injustice and her only glory is in her husbands´ esteem [7]. Kant also excluded women from citizenship because there wasn´t in them, like in children, the natural quality to acquire such condition [8]. The traditional, social and legal structure of the family has been one of the key factors of discrimination of women and for the configuration of patriarchy in the structural basis of society. This is a type of structure that shapes political and legal organization, culture, interpersonal relations and even the individuals´ own personality and that could not survive without leaving a deep mark in the family as a key element in the strategies of social and cultural reproduction [9]. From the natural sexual division -understood in biological terms- we moved to the assignation of social roles which have supported the political, social and economic order of domination of one gender over the other. The assignation of male and female roles and the unequal distribution of functions, powers and rights between genders, are the central point on which life develops, inside and outside the family, from the modernity to relatively recent dates. Gender is thus, a fundamental criteria to differentiate functions. It is the construction of sexuality as a means to exercise power: the bourgeois ideal of freedom is as well, the patriarchal ideal of sexuality [10].

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In order to strengthen masculine power it became necessary to build up a way of life based on the divorce of the public and private fields. Public field referred to trade, industry and politics and in it, the male was positioned with a productive function. Meanwhile, the activities of women were reduced to the private sphere, reserved to the family with their corresponding reproductive functions lacking of social value. In this way, the competition within the professional field among the spouses is avoided, along with the tensions that may arise from it [11]. Besides, the public sphere, where the male gains fulfillment, will be characterized by the recognition of rights, legality, agreement and negotiated coexistence. On the contrary, the private field, where women seek fulfillment, is kept apart from that kind of recognition and it would remain ruled by a certain equilibrium and natural harmony, not negotiable, of hierarchies, submissions and dependencies which in turn shall become a suitable place for domination and subordination [12]. Within the sphere of the family, the principles of justice, that human rights claimed for and acknowledged, did not apply. Family thus became a place of privacy for the male and the support of deprivation of rights for women. Women will not be then full citizens [13]. With the purpose of reducing women to their role of caregivers, although not responsible, for the household, their chances for education and to exercise a profession were limited. For a very long time, only the jobs that implied an extension of the maternal vocation of women would be admitted as suitable for them. Deepening even further into these discriminations, the State had to remain neutral before men and women relationships, since they occurred within the private sphere, a crossing line for public intervention. Home is presented as the ideal space of emotional life, a shelter for men where the responsibility of taking care of the family is the woman´s task [14]. In such conditions, home wasn´t precisely a shelter for women. In fact, some people see it as a trap in which sometimes clear signs of exploitation have been evidenced. It is a space of abuse where there can be no intervention against the manifestations of power of men over women, for home is considered a private field. The domestic female gives way to a domesticated femininity or to an ideology of domesticity [15]. Paradoxically, the competitive and free economy of the laissez-faire was not reflected in a sexually free society. The gloomy bourgeois focused on sexuality stressing stereotypes and the polarization of roles and sexual attributes. The “homo economicus” and the “domestic femina”, with their talents wisely distributed by nature, are part of a perfect union than prevents dangerous rivalries between the genders, inside and outside the family [16]. Modernity, that freed people from so many ties, brought as well anti-modernity for it was not capable of freeing the human being from the constraints of gender. It turned out that the very same promise of human liberation could justify male domination.

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In the cultural field where the first human rights were born, women are not free, or equal, neither can they compete or be the holders of rights. Women are granted other tasks different from the tasks of a citizen. The inseparable right of the virile moral strengthens the control over women who lose their individuality and their freedom in order to benefit the family circle. Economically dependent, immersed into an intellectual lethargy and absorbed by what is concrete and daily, the woman´s way of life has necessarily been associated with home, with closure in the family sphere, and this led, according to some opinions, to woman becoming a thing-process with a social representation of her that has often had more in common with being considered a sexual object rather than a person, preventing the feminine universe from participation in public life [17]. In this sense, Mary Wollstonecraft referred to women as those fantastic half-beings subjugated to real or natural laws, according to the cases, to the men who surround them [18]. It is the protection of a given role, the unavoidable faith of the feminine gender, of that who must not be done but who must exist [19]. Or, it is the celebration of femininity which due to mysticism assigns a certain role to her which sacrifices her development as a human being [20]. 3. THE FIRST DEMANDS OF WOMEN´S RIGHTS In line with the process of exclusion of women´s rights came the complaints about the lack of justification for it, as well as the demand for identical rights for men and women. It is said, in this sense, that feminism is the unwanted child of the Illustration [21]. Condorcet pointed out in 1790 that women should hold the same rights and, nevertheless, the right to an effective citizenship was never exercised in any of the so-called free Constitutions [22]. Olympe de Gouges is the author in 1791 of the Declaration of rights of women and female citizenship which is an exact copy of the French Declaration of Human and Citizens Rights with an explicit inclusion of women as holders of the same rights as men. Her Declaration started with a question: Man, are you able to be fair? A woman is making you this question [23]. In the year 1792 Mary Wollstonecraft wrote the Vindication of the Rights of Women, which demands justice for the other half of the human race through respect for the rights of women. In 1848, it was published the Declaration of Seneca Falls, document based on the Declaration of Independence which a reference text of women´s suffrage was denouncing the constraints that women face in their rights. In 1869, John Stuart Mill, with the perspective of the liberal approach to human rights and the need of applying these rights equally on both men and women, declares that the emancipation of women will not come until women are

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recognized with equal rights as men, with free access to all jobs, to teaching and until the power of the male is eliminated in the family. Until then, the status of women would be in a position similar to slavery. He appealed to the abolition of legal obstacles in order to make possible the full exercise of women´s capacities and free development of their personality. His essay is based on the belief that the relations of dependency between the sexes are wrong in themselves and that they are one of the main obstacles for the progress of mankind. He stressed as well the need to substitute those relations by relations of perfect equality, without privilege or power for neither one of the gender nor any kind incapacity for the other [24]. These statements in defense of the rights of women try to put on evidence that the identification of the concept of human, linked to the concept of man, was in fact lacking claim of universality. It evidenced, on the contrary, a contingent nature born out of concrete historical and political circumstances which had been interpreted, from a particular perspective, by those who were to be holders of rights and had to be its contents. The subject of human rights, just like any other build-up category, is always something unfinished and in progress, opened to new concretions according to the cultural perspectives of the precise moment for ethical and social transformations into a new conception of human beings, holders of rights, that were excluded before [25]. It´s for that reason that freedom and equality, as universal terms, keep being the greatest vindications in the new century for the traditionally excluded groups; and among them, women occupy one of the privileged positions. If modernity appeared with great strength in terms of differences and discriminations on grounds of sex, showing an enormous resistance to change, we are now witnessing a new modernity or rather the eternal and unfinished modernity, in its constant role of dissolution of solids. It is a stage of “liquid” modernity where there is a constant criticism to the homogenization of individuals under the alleged normality. It is the history of the lawbreaker, unlimited and erosive modernity [26] which appeals once more to the human being as rightholder, and where women do not stand apart from such universal referents. Women vindicate their condition of human being, subjects to rights in equal conditions with men. Since human rights are not static, the universality of the model has been able to expand both in terms of the rights themselves as to the holders of these rights. The alleged normality that has allowed developing certain rights enjoyed by concrete subjects in particular moments, is not neutral. For this reason, nowadays, the change in the paradigm from modernity has made it possible to swift from a blending and, in some cases excluding model, to a model that is more respectful of differences and that implies the recognition of particular identities. If the first

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generation of rights was recognized by having an abstract right-holder, in the second generation of rights, it was carried out a process of specification of rightholders, incorporating to those abstract and universal rights other rights that considered the person from the perspective of certain specific conditions: work, illness, unemployment, disability, childhood, or gender, among other circumstances, and this has become a reference criteria to protect people involved in diverse circumstances, which is vital for their development. From the point of view of that first model of rights, the recognition of women’s equal rights to those already enjoyed by men, its inclusion in the generic concept of man as human being is a new step in the process of generalization of rights. However, the recognition and the positive evaluation of the differences between men and women imply legitimacy in the recognition of specific rights for women and, above all, specific guarantees to achieve an effective exercise of these rights. 4. FROM THE RECOGNITION OF THE RIGHTS OF WOMEN TO THEIR REAL FULFILLMENT The potentiality of rights, as far as its effective realization is concerned, requires an adequate system of guarantees. For this system to become a reality, it is necessary to bear in mind the situation of those who may be more vulnerable, and this is the case of women due to different circumstances. The difficulties of women to exercise their rights become evident in the very fact that nowadays no nation in the world has actually reached real conditions of equal opportunities for both genders. Associated to social problems of great relevance, issues such as glass ceilings, wage gaps, double shifts, gender violence or social exclusion risks are part of common situations in developed countries. The problems related to these situations are more urging in under-developed countries, where poverty, the distribution of wealth, nutrition, health, literacy teaching, land rights, the rights to work, and to a freely consented marriage, or rather the lack of these rights for women, are an unmistakable sign of the fact that an important part of humankind is deprived of the necessary conditions that have allowed to build up the central concept of Kantian dignity. Women subjected to extremely poor conditions of life, in dependency, or sometimes even abusive relationships are indeed incapable of choosing their own plan of life as a matter of fact. Thus, it does not seem to be a redundancy, or a platitude, to say that human rights are to be of, and for, women. In fact, in the Vienna Conference or human rights 1993, they felt the need to expressly declare that the rights of women and girls are an inalienable part of universal human rights. It was also declared that violations to women, in case of armed conflict, are also violations to the fundamental principles of human rights, and the fact that violence against women, sexual

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harassment and feminine exploitation are incompatible with human dignity and must be abolished. On the other hand, the lack of undisputed evidence that human rights are also related to women´s rights is evident whenever a state alleges cultural, religious or reasons of national sovereignty to justify discrimination on grounds of sex in its legal system; and when under similar reasons, they oppose to establish actions that may put an end to those practices. It is a fact that not in a few countries, the rights of women are systematically rejected with legitimizing claims, such as respect to traditions or cultures, which configure, as a universal pattern, the superiority of men. Without going to the point of absolute the lack of recognition of women´s rights, the persistence of conditions not egalitarian in the actual exercise of these rights is evident worldwide, either because its conquest has taken longer and the economic, social and cultural conditions required for this egalitarian exercise have not been given, or because the subject model of rights has been and remains being the male. The truth is that many women, solely by reason of their sex, are currently suffering important shortcomings in the recognition of their rights, serious violations of these rights or loss of effectiveness. In this scenario and from a conception of respect for human rights, to their equality and universality, it is necessary to be alert to the old or new imposed regulations that may include or exclude subjects from the scope of the rights, and to the specific guarantees that require different collectives to enforce their recognized rights [27]. In any case, the generic prohibition against discrimination is not enough to place women in a position equivalent to men in their condition of full citizens with full enjoyment of their rights. The incorporation of women to a model of rights, initially conceived by and for men, has not resulted in a parallel enjoyment of these rights regardless of the subject that seeks. Hence the importance of talking about women´s rights. Taking human rights seriously, also for women, and ensuring their effectiveness when women are those who intend to exercise them, requires a gender approach in the knowledge and analysis of human rights. A look into the rights from a gender view cannot avoid considering the real liberties that women and men enjoy respectively when choosing a certain way of life [28]. It is easy to see from the consideration of those parameters, that if rights, resources and opportunities are fundamental to guarantee the dignity of human beings, it is no less important the analysis of the historical, social, cultural and economic circumstances that determine in both men and women those rights, resources, opportunities and, ultimately guaranties of effectiveness [29]. From that perspective, certain rights have to focus especially on women, because they respond to conditions or needs that belong exclusively to the feminine gender, like for example, rights related to

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reproductive health, maternity and violence of gender. On the other hand, if we want to avoid women from being excluded from the exercise of certain rights, it is necessary that, on the basis of diverse experiences, necessities and conditions for vital development, we consider guaranties that, from the singularity of the rightholder, may allow to ensure an effective access to the rights. 5. WOMEN´S RIGHTS IN GLOBAL PERSPECTIVE If it is important for the effectiveness of the rights to consider them from a gender point of view, it is no less relevant to do it so from a global point of view. The problematic regarding the rights of women is not a local but a universal reality which requires resources capable of transcending prejudices based on national frontiers, culture, race, religion or social class and which may allow us the opportunity to consolidate those rights. It is a global reality that reveals itself in aspects so overwhelming as in the fact that feminization of poverty has become part of the language on the reports of international organizations; or the constant allegations of structural violence against women derived from the relations of power between men and women in their family, work and social spheres, and which evidence an unequal access to resources; or the generalized incorporation of women to the labor market in precarious conditions, the accumulation of shifts and lack of social protection; or the use of women as weapons to throw at the enemy in war situations [30]. We should also bear in mind that the most brutal manifestation of discrimination against women: gender-based violence, as a violation of human rights, and the rights of women and girls, as inalienable part of human rights, were not made explicit until the year 1993 in the Vienna Conference on Human Rights. It is from this time, relatively recent, that violence against women cease to be a private matter to become a public issue, referred to human rights. In the process of internationalization of human rights, the inclusion of women as subjects of rights has always been mentioned, proof of the great concern about sexual discrimination and of the worries that such situation represent. In the Universal Declaration of Human Rights of 1948, in its preamble, the equality of rights for men and women is already mentioned. Article 7 affirms that equality of all before the law and the right to equal legal protection against any discrimination that violates the Declaration, or against any provocation to such discrimination. It recognizes equal rights to marriage, inside the marriage and in the event of its dissolution, and the free and full consent of the both spouses (article 16). The right, without any discrimination, to equal pay for equal work (article 23), and the right to special care and assistance during maternity (article 25.2).

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The International Covenant on Civil and Political Rights of 1966 gathers the commitment of all member states to respect and guarantee the rights recognized in the Covenant without distinction of gender (article 2.1). And furthermore, in article 3, there is a deep commitment to ensure equal treatment for men and women to exercise all their civil and political rights, admitting no restriction or detriment of these rights under conventions, regulations, laws or customs (article 5.2). The International Covenant on Economic, Social and Cultural Rights of 1966 points out that member states undertake to ensure men and women equal entitlement to enjoy the economic, social and cultural rights listed on the Covenant (article 3). Also, in article 7.a. ii, it is mentioned that it must be ensured that women enjoy work conditions never inferior to those of men, with equal pay for equal work. In the same way, article 1 of the American Convention on Human Rights 1969, come into force in 1978, establishes the commitment of member states to respect the rights and freedoms recognized in it and to guarantee their exercise, without any kind of discrimination due to gender. From the 50´s on, the international community addresses the development of the rights of women through different texts. Some of them respond to specific and urgent problems such as the Convention on the Political Rights of Women of 1952, the Convention on the Nationality of Married Women of 1957, the Declaration on the Protection of Women and Children in Emergency and Armed Conflict of 1974, or the Declaration on the Elimination of Violence against Women of 1993. Others are more general such as the Declaration on the Elimination of Discrimination against Women of 1967 or the Convention on the Elimination of All Forms of Discrimination against Women. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) approved by the General Assembly of the United Nations on December 18th 1979, in force since 1981, establishes specific rights and obligations for the states in relation to the rights of women. The preamble of the Convention highlights the important discriminations that women continue to suffer and therefore the violations to the respect for human dignity. It also points out the multiplier effect in terms of well-being and development that has for women, family, society and for humanity to put an end to that discrimination. And finally, the need to modify not only the traditional role of women, but also, that of men in order to achieve some kind of shared responsibility within the familiar sphere and in society as a whole.

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Article number 1 of the Convention defines what is meant by discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and the fundamental freedoms in the political, economic, social, cultural, civil or in any other field”. It establishes the commitment of all member states to adopt all necessary measures to ensure full development of women, guarantee the exercise of human rights in equal terms with men in all fields, especially in the political, social, economic and cultural ones (article 3). It legitimizes positive action measures and special measures of protection to maternity (article 4) while conceives maternity as a social function. It urges the modification of social and cultural patterns based on the idea of relations of superiority-inferiority between the sexes or on gender stereotypes and calls for shared responsibility on education and the care of children (article 5). Throughout the articles of the Convention, a list of rights related to all areas of personal fulfillment of women, is made up (articles from 7 to 16). With the purpose of making effective all the rights contained in the Convention, it was created the Committee on the Elimination of Discrimination against Women, and all member states must submit reports on the measures taken and the progress made in this regard. Such Committee can make suggestions or recommendations based on the reports transmitted by member states (articles from 17 to 22). CEDAW is the most prominent international legal instrument regarding the comprehensive and specific protection against all forms of discrimination against women. However, its binding, multilateral and global character is partly undermined by the amount of reserves made by member states, some of which are contrary to the very purpose of the Convention. On the other hand, it must be pointed out the limited effectiveness of the techniques of control of compliance with the Convention, basically focused on the reports that the same member states submit to the Committee on the Elimination of Discrimination against Women. Nevertheless, the international instruments for the protection of women´s rights are not finished with the CEDAW. The World Conference on Human Rights approved, on the 25th of June 1993, the Vienna Declaration and Programme of Action. Among the deep concerns with which the Conference is addressed, we can find the various forms of discrimination and violence that women are exposed to all over the world, as well as the violations to human rights during armed conflicts affecting the civil population, women in particular (Vienna Declaration and Programme of Action I.29). With that purpose, it is stated that human rights of women and the girls are an inalienable, integral and indivisible part of universal human rights and that the priority objectives of the international community are the full participation, on equal terms, of women in political, civil,

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economic, social al cultural life, and the eradication of all forms of discrimination based on gender. Likewise, governments, intergovernmental institutions and nongovernmental institutions are invited to intensify their efforts in favor of the protection and promotion of the human rights of women and girls (Vienna Declaration and Programme of Action I.18). More specifically, it is earnestly requested from the World Conference on Human Rights, that women are granted full enjoyment, in conditions of equality, of all human rights and that it is a priority for all governments and for the United Nations. It is stressed the importance of the integration and participation of women, as agents and beneficiaries, in the process of development and it deals especially with the need to eliminate all forms of violence against women in their public and private life. It also requests to eradicate any traditional practice or custom that may affect negatively and that may generate detrimental consequences for women´s rights weather of implicit or explicit nature. It is also attributed to the United Nations the duty to promote the universal ratification by all states of the Convention on the Elimination of All Forms of Discrimination against Women (Vienna Declaration and Programme of Action II.3. 36, 38, 39). Parallel to these international texts, the year 1975 was declared by the United Nations as the International Year of Women, and the decade 1976-1985 was declared the United Nations Decade for Women, under de motto: Equality, Development and Peace. In 1975 the First World Conference on Women took place in Mexico. This international conference was followed by three more: Copenhagen, 1980; Nairobi, 1985 and Beijing, 1995. From the perspective of a global problem that affects all humanity, these various international initiatives, fields of reflection, participation and proposals, have contributed to put in global agenda the specific difficulties that women face in the field of human rights, their recognition and exercise. In doing so, it has been possible to warn about the lack of recognition of women´s rights in many states, the disparity between the recognition of the rights and the unequal capacity to exercise them, or to address the concept of women as passive recipient of support and assistance. The social and political role of women has been vindicated, their right to participate in management and decision-making, empowerment and equal share of power, the need for positive actions in favor of women, the elimination of stereotypes and the necessary contribution of women to development and peace. In short, there has been a call for international attention in which it is evident that humanity will not be able to overcome its huge problems without the recognition and protection of women´s rights. Attempting to resolve issues such as overpopulation, poverty, illiteracy, malnutrition, health or mortality requires a look at women, so often neglected and

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necessarily located in the center of all these problems. If a gender perspective is needed to solve such serious problems, we cannot do without it to take on the great challenges, such as sustainability, progress and development, which face this century. 6. URGENCY AND NEED TO BE PROACTIVE IN DEFENDING THE RIGHTS OF WOMEN Dealing with and applying rigorously the rights of women to overcome problems and face challenges proper of our time, is something necessary, convenient and, in the light of the delay in comparison with the rights of men, it should be urgent, too. If, on the one hand, this verification of the reality demands universal legal recognition of the rights of women; on the other hand, one must be aware that the social practices deny, sometimes, what laws recognize and we must take action against that effect. We can see that, despite that fact that women´s rights have been widely recognized as an integral part of human rights, the violations to rights suffered by women, solely by reason of their gender, are not always considered as such under the umbrella of alleged cultural reasons. There remain unrecognized in many parts of the world, equal rights for men and women, or specific rights of women, such as those relating to maternity, sexual or reproductive health. Similarly, in the exercise of rights with legal coverage, it still happens quite frequently that we don´t take into account the special difficulties that women face to exercise these rights in real conditions of equality of opportunities. Rights keep being defined with unequal participation of men and women in a vision where survives the vision of rights from the perspective of the male´s needs, such is the traditional pattern of the right-holder, or women assuming just certain rights regarding her role as caregiver, being men, as subjects whom women must take care of, the last recipient of these rights. Nor we should forget that poverty of women has much to do with their limited access to property, contract, credit, employment or with their status within the family. If ending with discrimination of women in the world is an objective to be considered in itself because it implies respect for human dignity, for human beings and their rights; it is also so because women can be active agents an engine of development. The outstanding role that women may take to activate development is a consequence derived, not only from the necessary and reciprocal implication of human rights, but also from the role that women can play as a receiver and active participant in the process [31 - 33]. In this sense, it is noted that respect to women´s rights acts as a propagator of economic growth and contributes to accelerating development because it has a multiplier effect on the well-being of the community where women live. The access of women to the rights also allows their access to resources of subsistence of the family and

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society; it can help balance relations of power within and outside the family union; it acts positively on the improvement of life conditions, health and education of their environment; it leads to the decline of birth rate and of infant mortality, and it can generate economic benefits to the community through the tax system and the increase in the demand for services [34, 35]. Among the UN Millennium Development Goals are the support to gender equality and the empowerment of women, but also reducing the number of people who live in poverty, improvement of health conditions, employment and education. Indeed, gender equality and empowerment of women may well be, at the same time, a powerful instrument in itself for the achievement some of the objectives already mentioned. Gender equality polices can be very useful to reduce the number of people who live in poverty; we must not forget that 70% of these poor are women. Equality policies can also be useful to improve general health conditions, and most particularly, those of women themselves considering that women are granted less economic resources in terms of health services. There is also little doubt about the beneficial effects of policies of equality in education, since we find concentrated in women the highest rates of illiteracy and the most prominent lack of access to education in all stages. Regarding employment, the full integration of women in the labor market is one of the fundamental elements of progress due to its transformative effect on the economy and society. The aspects to implement and improve are several and range from the impossibility of access to work to discrimination within the labor market, either related to salary or to promotion. Despite these and other evidence about the importance of the recognition of the role of women in economy, education, health, or within the structure or family, they are still not in the center of the decision making processes on these issues. An equitable progress, adjusted to the needs of agents and beneficiaries of the same, women and men, will be virtually impossible to achieve while the participation and involvement of women and men in the major centers of decision does not change. Therefore, it will be necessary to place the voices of women in the private and, above all, in the public discourse, regain their memory, recue their experiences, recognize their work, so often hidden, and their proposals for transformation and progress in a world that, inevitably and fortunately, is shared by women and men [36]. The significance of the issues raised and their effects on the living conditions and development of all human beings, allows us to conclude that the enforcement of women´s rights should no longer be regarded as a women´s issue. The boundaries of discrimination will not be overcome unless they are addressed in all its

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dimensions, as a huge problem of social justice that affects both women and men, and therefore, must be faced jointly. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

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Izquierdo MJ. El malestar de la desigualdad. Madrid: Cátedra 1998; p. 362.

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Parson T. The social structure of the family. IN: Anshen RN, Ed. The family. New York: Harpers & Brother Publishers; pp. 241-76.

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McDowell L. Gender, Identity and Place: Understanding Feminist Geographies. Minneapolis, Minnesota: University of Minnesota Press 1999.

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Millett K. Sexual Politics. Urbana: University of Illinois Press 2000.

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Wollstonecraft M. A Vindication of the Rights of Women. London: David Campbell Publishers 1992.

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CHAPTER 8

Citizenship versus Collectivism: The Legislative Contribution to Gender Equality Juana María Gil Ruiz* Department of Legal Philosophy, University of Granada, Granada, Spain Abstract: Participating in a volume dedicated to rights and vulnerable groups makes it necessary to set out the axioms from which this chapter starts. Traditionally the legal efforts that have been made to recognize the rights of women have only been proposed as legal “addenda”, perfectly adaptable to the patriarchal system, and always considering women as a vulnerable group in need of protection, a condition also comparable to that of other groups on whatever may be the basis, whether of race, illness, disability or sexual orientation. But to misdiagnose a subject carries with it a nefarious prognosis. Classifying women as a vulnerable group, when they are over 52% of the world’s population, who in turn suffer the overlapping and systemic structures of exclusion due to race, disease, disability, age or sexual orientation is like treating a structural excluding cancer with sticking plaster. This poor diagnosis of the subjects whose rights must be recognized and protected transversely has forced the international, European, national, regional or even legal local orders to reconceptualize the principle of equality, but this time looking at women as a non-vulnerable group of citizens and to settle on a new way of making law. Here we will discuss one example of this new and complex manner of creating law, although aware of its weaknesses and strengths.

Keywords: Citizenship, Equality principle, Human rights, Objective law, Vulnerable groups. 1. INTRODUCTION This chapter seeks to set out the recent efforts of Spanish legislation and European directives to achieve the principle of equality of women and men. It also summarises some of the most important international legislation and its influence on national law and the response of public authorities accepting their Corresponding author Juana María Gil Ruiz: Department of Legal Philosophy, University of Granada, Granada, Spain; Tel: 0034 958248584; Fax: 0034 958243431; E-mail: [email protected] The author acknowledges the financial support provided by the Ministerio de Economía y Competitividad (Spain), through the Research Project "Carencias y Alternativas jurídico-políticas al tratamiento de las violencias de género: formación e investigación en Derecho Antidiscriminatorio", Grant Number DER2014-57244-R, Principal Investigator: Juana María Gil Ruiz" *

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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responsibility for public policy as well as creating awareness of citizens. Traditionally the legal efforts that have been made to recognize the rights of women have only been proposed as legal “addenda”, perfectly adaptable to the patriarchal system, and always considering women as a vulnerable group in need of protection, a condition also comparable to that of other groups, whatever may be the basis, whether of race, illness, disability or sexual orientation. But to misdiagnose a subject carries with it a nefarious prognosis. Classifying women as a vulnerable group, when they are over 52% of the world’s population, who in addition, suffer the overlapping and systemic structures of exclusion due to race, disease, disability, age or sexual orientation is like treating a structural excluding cancer with a legalsticking plaster. This poor diagnosis of the subjects whose rights must be recognized and protected transversely has forced the international, European, national, regional or even local orders to reconceptualize the principle of equality this time looking at women as a non-vulnerable group of citizens and to settle on a new way of making law. Here we will discuss one example of this new and complex manner of creating law, although aware of its weaknesses and strengths. Moreover, it deals with the complex binding principle of gender mainstreaming ratified by almost every country on the earth and which demands urgent and important organizational and functional changes to and from the law. In this process the three branches of government and high officials, responsible for sectoral policies, so that from an adequate and complex training in antidiscrimination law, this new mandatory legislative technique can be implemented. Here we will discuss one example of this new and complex form of making law, the Gender Assement Report, although aware of its weaknesses and not only its strengths. Being a woman does not mean being sick, or disabled, although indisputably there are female citizens participating in disparate groups [1] defined by class, race, age, illness, etc., resting on concrete factors of subordination and discrimination. But despite this intersectionality of factors, the truth is that sex-gender crosses them all, to the point of finding the experience that half of humanity, as women are, are subordinated in all countries and societies worldwide. Moreover, while it is true that both men and women have suffered discrimination according to class, ethnicity, sexual preference, among other reasons, no man has been discriminated against because of his sex, compared with women who have. This reflection serves to expose the dynamics of institutional repositioning in the same package, whether it is called council, or provincial-service area-: youth, the disabled, women and the elderly; and the use of the term “vulnerable groups” so beloved of the United Nations to classify discrimination against women and other discriminated populations. Being a woman is to be a citizen and every legislative effort must be directed with the Constitution in hand, so that women may

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participate in the social, cultural, economic and political life of the people, being a part of it, and not a mere annexed minority. It means being able to participate in political power, but also enjoying, without limitations or penalties- civil and social rights. It means being visible, everywhere, without asking permission, forgiveness, giving thanks to the finger of God, or to be branded as privileged quota, as a collective, as compared with men who are thought of as citizens. But redefining the model of citizenship in accordance with gender equality is something more than equating the feminine with the masculine, on the pattern of similarity or difference that defines our humanity (the male as the human template [2]. It is to be aware, rereading Alda Facio [3], that women have needs and interests that may or may not coincide with those of men, but in any case, are needs and interests specific to their gender and humanity, as the interests and needs males are specific to their gender and humanity. Not surprisingly, ‘(T)he history of liberation struggles of many groups oppressed by ethnicity, geographic location (...) shows that to start eliminating discrimination against these groups begins with the elimination of discrimination against men in these groups. That is because men perceive and are perceived as the model of the human being; moreover, men of marginalized groups perceive and are perceived as the model of oppressed human being. Thus, the black believes and is considered as the model of a human being oppressed because of his race, therefore sees the elimination of racism as the [4] elimination of the racism that he and not she experiences. Thus, if we fight for the elimination of racism, or against class oppression or discrimination against people with disabilities or homophobia, experience has shown us that our participation in these struggles does not guarantee that in turn we would eliminate the discrimination of women suffered by women belonging to ethnic groups, poorer classes, lesbians, etc.’ And this intersectionality of factors must not make us lose sight of the importance of the sex-gender system in policies. Or to put it another way, ‘intersectionality should not serve to dismantle the recognition of the sex-gender system as the “mainstream” in them. Moreover, the virtuality of gender mainstreaming rests largely on this latter, and not on mere mainstreaming’. Undoubtedly, this circumstance has led to specific antidiscrimination legislation being displayed from international organizations, as well as equally specific international conferences, which endowed the public policies of gender equality with a central role through gender mainstreaming. The prevalence of gender mainstreaming also shows that by recognizing this principle, the entire legal system appears imbued with the aim of achieving equality between men and women, so that every legal norm is endowed with the additional end of achieving that objective. In other words, each and every legal norm has to become a mechanism for achieving equality between men and women. We can speak then of another way of seeing and understanding the law,

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since the conditions from which we start and the distance in the race to become a citizen, are not the same for women and men, besides being at the crossroads of many other factors, systems and structures: ethnicity, class, sexual orientation, religion, disease, etc.), which make it even more difficult to arrive at the final goal guaranteeing freedom, equality and security. 2. THE EUROPEAN AND INTERNATIONAL LEGAL AND POLITICAL COMMITMENT TO EFFECTIVE EQUALITY OF CITIZENSHIP The General Assembly of the United Nations adopted the UN Convention on the Elimination of All Forms of Discrimination against Women, known as CEDAW, on 18 December 1979. Spain ratified it in 1983 and it has now has been ratified and / or adopted by a total of 187 countries. Afghanistan. USA and South Sudan have signed, but not yet ratified it and 8 countries are needed to complete the entire globe: Iran, Nauru, Palau, Qatar, Somalia, Sudan, Tonga and the Vatican. This Convention, although it was not exactly the text that women's organizations desired, was a first step, a milestone in the history of gender equality. Some aspects are worth highlighting: the legal definition of ‘discrimination against women’ (Art 1) [5], incorporating a programme of action for States Parties (Art. 3) and differentiating positive action measures (Art. 4); and linking them (the parties) (Art. 2) to the point of assigning responsibilities for violence against women, whether by action or omission -in Resolution 45/1994, to the Human Rights Commission. However, it was not until more than a decade had passed, when after the Third World Conference on Women in Nairobi in 1985, the Committee entrusted to ensure the effective implementation of CEDAW, incorporated violence explicitly as a form of discrimination, reaching the conclusion, in paragraph 4 of General Recommendation No. 19, that ‘Reports of States parties do not always adequately reflect the close connection between discrimination against women, violence against women and violations of human rights and fundamental freedoms.’. This close relationship between violence against women and discrimination is what I have come to call the different faces of gender violence [6], encompassing the concept that goes beyond and includes gender violence in the context of the relationship of the couple. It makes visible a fundamental maxim that gender violence cannot be eradicated in the context of that relationship if previously the structural violence suffered by women has not been made visible and combated not only in the private sphere (the tip of the iceberg), but also in the public one. However, all this points to another way to make law, led by and towards another model of citizenship, this time inclusive of all human beings in their differences,

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not closer in the model of the male (white, adult and property owner). We no longer speak of a citizen in the human template of the man, but rather as a citizen who has interests and claims appropriate to her own sex and humanity, her own interests and claims, just as men have – as citizens. But that said, we have to start from the sociological-political reality and data. To be able to participate in the social, legal and political life as a citizen (not as a vulnerable group), to have a voice, woman has to be identified to the maximum of her existence. If she does not she is unable to participate, however much international and national instruments are knocking incessantly at the door about the theory of the concept of ‘citizen’, and however much woman is said to make up 50% of global humanity. The data provided by the UN [7] today and which will be given later, even now confirms the diagnosis of needs, the invisibility in areas of vital importance highlighted by the Government, and the urgency of incorporating gender mainstreaming into the law to eradicate all forms of discrimination and exclusion and achieving effective equality of citizenship (see Table 1). This marks the second aspect we should pursue. If the first focuses on the need to mainstream gender in legal and non-legal regulations drawn up by the government (another law and another politics), the second rests on the need and urgency to ensure a balanced and active presence of women in the organs of political and economic decision, which is especially relevant. Never has a picture been more expressive and so explicit about the scandalous gender inequality in the world, about why, according to WHO, one third (1/3) of the world's population has suffered gender violence from their partner or former partner; why 38% of murders of women in the world are due to gender violence; why 7 out of 10 women in Mexico have suffered violence at some time in their lifetime; or why –dealing with Spain and according to the Centre of Sociological Research, 600,000 women have experienced some form of violence, although only 120,000 cases have been reported. Table 1. Differences showing the inequalities between women and men. WOMEN (%)

MEN (%)

DIFFERENCE

POPULATION

50

50

0

HOURS WORKED

52

48

4

MONEY OWNED

10

90

-80

LAND OWNED

1

99

-98

POVERTY

67

33

34

ILLITERACY

70

30

40

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(Table 1) contd.....

WOMEN (%)

MEN (%)

DIFFERENCE

MALNOURISHMENT

80

20

60

CHILDREN NOT ATTENDING SCHOOL

67

33

34

PARLIAMENTARY SEATS

17

83

-66

MINISTERIAL POSTS

16

84

-68

FINANCIAL DIRECTORS/MANAGERS

14

86

-72

And this is so, although the Second World Conference on the Protection of Human Rights held in Vienna in June 1993 raised the full enjoyment of the rights of women as a ‘priority for governments and the United Nations’ and that ‘equality of women and their rights must be integrated into the main activities throughout the UN system’. How could it be otherwise, when after Nairobi, the Fourth World Conference on Women held in Beijing in 1995, renewed the international community’s commitment [8] to achieve gender equality and development and peace for all women? In the same conference all governments and other actors were invited to integrate ‘gender mainstreaming, as the main current in laws, policies, programs and public projects’ [9] and their consequences for women and men respectively, before making decisions. Subsequently, this commitment has been reconfirmed many times, pursuing and analyzing the mechanisms to increase the accountability of governments in fulfilling the mandate contained in the Platform for Action. However, the confusing translation of the Spanish version of Point IV of the Platform for Action adopted at the Fourth World Conference on Women in Beijing in 1995, complicates the meaning of gender mainstreaming, which not only aims to introduce gender transversely but to give this perspective (as against others) a main character. Taking as my own the words of M. A. Barrère [10]: ‘The language reference to its introduction, particularly in point IV of the Platform (8th strategic objective) is not trivial. Thus, according to the English version of this document, the main task of institutional mechanisms (national) for the advancement of women would ‘support as mainstreaming a government-wide gender perspective in all policies [11]. (emphasis added) and ‘promote an active and visible policy that elevates a gender perspective of mainstreaming into all policies and programs’ (emphasis added) [12]. However, in the Spanish version that reference noting that the main task of these mechanisms would ‘support incorporation in all government bodies of a perspective on gender equality in all policy areas’ and ‘the incorporation of the questions of gender ... (in) all policies and programs’ That is to say, in the Spanish version “mainstreaming” is translated

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simply as ‘incorporation’, thus losing the connotation in relation to the root term of ‘mainstream’. Europe has not been left out of this commitment to making effective inter-gender equality become part of one of the priorities of its policy agenda. Not surprisingly, it is described as ‘a strong and growing principle at the heart of the European Union.’ Indeed, it has been recognized by Article 3 of the Treaty of Amsterdam, which has included it as one of the priorities to be considered in the design of European policies, stating ‘in all the activities referred to in this Article the Commission shall aim to eliminate inequality and to promote equality between women and men.’. The promotion of equality between men and women is included as an objective of the Union (to the point of conditioning) the totality of Community Policies to the goal of achieving gender equality. (Rey Martínez, 2004) [13]. Thus, the aim of equality is not achieved through one or more specific actions, but integrating it into all actions. Article 3.2 of the Amsterdam Treaty clearly spells out the objectives of the European Union as set out above and the recent Lisbon Treaty stated in identical terms in Article 8: ‘In all its activities, the Union shall aim to eliminate inequalities between men and women and promote their equality’. In this sense, ‘the Commission of the European Union in the light of political decisions which in principle appear gender neutral may have a different impact on women and men, although this effect was neither planned nor so desired, adopted (in 1996) a Communication [14] on horizontal gender mainstreaming –introducing it in the Treaty of Amsterdam (1997), as a first step towards realizing the commitment of the European Union to integrate the gender perspective in all Community policies and developed a Manual for Gender Mainstreaming [15] designed to be projected within the Commission in order to avoid unintended negative consequences that favor situations of discrimination and to improve the quality and effectiveness of EU policies’ [16]. Thus, as a complement to the objectives of the Community action providing for the promotion of effective equality of women and men, the approval of Council Decision 2001/51 / EEC of 20 December 2000, for adopting a program of Community action (V Framework Programme) strategy (COM 2000 335 final) [17] is worth mentioning, and it was to be followed by mainstreaming and the Roadmap for equality between women and men 2006-2010. The dual approach of this Framework Program is one of the instruments necessary for the implementation of the overall Community strategy on equality between women and men, which covers all policies and all Community action to achieve such equality, including policies for the integration of gender equality and specific

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actions targeted at women and noted for giving special prominence to the gender impact assessment in all areas of intervention (economic, social, political, civil life, roles and stereotypes, ...) that have direct or indirect impact on women or men, as one of the actions to be taken to achieve the objectives mentioned in the said programme’ [18]. This explains the meaning of gender mainstreaming and requires that ‘in the design and implementation of all policies there have to be taken into account the concerns, needs and aspirations of women, to the same extent as those of men’ [19]. And this is so because, as is well known, the existing model of public policies in the world, and of course in Europe, was not designed with the idea of ensuring gender equity. On the contrary, women have less access than men to education. In fact, over two-thirds of illiterate people in the world are women. Also people are important social rights holders based on their position in the labour market, and this implies-in so far as women are less connected and their precarious conditions are greater than their male companions, a penalty or to put it another way, they suffer discrimination in access to social rights derived from employment such as pensions. Therefore, the fields of intervention, mentioned above, in which the principle of mainstreaming to which the Community rules referred to apply, are: 1. Economic and social spheres: devising strategies to promote gender mainstreaming in all policies that impact women in areas such as fiscal, financial, economic, educational, transport, research and social policies, the European Employment Strategy and the use of structural funds to promote equality. 2. Participation and representation in decision-making bodies: improving the balance of women - as citizens- and men - in taking political and economic decisions. 3. Access and full enjoyment of social rights for women and men, improving knowledge of these, as well as augmenting the vigilant application of existing legislation in the social field on atypical contracts, working conditions and reconciliation. It will also ensure the implementation and evaluation of policies and activities that have an impact on the daily lives of women and men, such as transport policy, public health and external relations, including the Community program to combat discrimination grounded in Art. 13 EC Treaty and policies relating to human rights. 4. Civil life: through monitoring, dissemination and control of the implementation of community legislation and jurisprudence on equal treatment between women and men; recognizing and promoting the application of the specific rights of women as universal human rights and combating gender-based violence and

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trafficking in human beings for sexual exploitation. 5. Changing roles and male and female stereotypes: relying on awareness campaigns and gender training, through education, media, culture and science. Prejudice and sexist stereotypes that highlight the lack of recognition of half of all citizens and the transmission of subordinating and hierarchical values must be eradicated. In this line, and strengthening this demand, the European Commission included in the requirement in the Structural Funds Regulations 1999 [20] for the drawing up of Regional Development Plans for 2000-2006 the inclusion of a Gender Impact Report. The requirement to accompany the Regional Development Plan was: C) an ex-ante evaluation of the situation in terms of equality between men and women with regard to labor market opportunities and treatment at work, including the specific constraints on each group; an estimate of the expected impact of the strategy and assistance, particularly on the integration of women and men in the labor market, on education and vocational training, on the establishment of women in business and the reconciliation of family and working life.

To reinforce its binding nature and obligation in the law of the Member States, the European Union required the transposition of a Directive [21] of vital importance for the principle of mainstreaming; namely Directive 2002/73 / EC of 23 September 2002, of the European Parliament and of the Council amending Directive 76/207 / EEC of 9 February, 1976 on the principle of equal treatment between men and women as regards access to employment, vocational training and promotion, and professional promotion conditions. Its Article 1.3 is emphatic about this: ‘Member States shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, and administrative provisions, policies and activities in the areas referred to in paragraph 1’ [22]. And in this vein, Member States, according to the new wording of Article 3.2.a), are obliged to take ‘any necessary measures to ensure that any laws, regulations or administrative provisions contrary to the principle of equal treatment are abolished’ Although it seems that the change is minimal, the new wording requires something more, an additional guarantee of integration: ensuring repeal, a guarantee that could come from equality bodies [23]. In other words: ‘it is not enough to establish measures to repeal discriminatory rules, such as judicial control of the constitutionality of laws or the legality of regulations, legal institute overall effectiveness and competence of the regulatory body is only enough to establish measures to remove discriminatory rules, such as

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judicial control of the constitutionality of laws and legality of regulations, it is also necessary to derogate norms, having generally effective legal institutions and the sole competence of the normative body’ [24]. However, without going further, the implementation of the principle of mainstreaming EU policies has experienced great difficulty [25] identified even in the Report of the Commission on the Monitoring of Communication (98 122 final) which emphasizes three fundamental points: ‘there is insufficient awareness of gender issues at the levels where decisions are made, the lack of human and budgetary resources allocated to these tasks and a lack of experts in gender issues. According to the Commission these obstacles should be overcome in order to apply, as normal procedure, impact assessment in terms of gender policies and to ensure quality, in terms of gender, of any legislative proposal or other policy document or action of the Community on the objective of equal opportunities’ [26]. The three war horses are clear: raising awareness about gender equality; an adequate budget; and serious commitment to gender training. 3. LEGAL AND REGULATORY MEASURES TO INCORPORATE GENDER IMPACT ASSESSMENT IN PROVISIONS AND PLANS OF PARTICULAR RELEVANCE DRAFTED BY THE GOVERNMENT Spain suffers from these difficulties already mentioned in the European international framework. The requirement for a gender impact assessment report requires a not negligible effort, nor one that is easy to fulfil, and this has led the CEDAW Committee (August 7, 2009) to insist and demand of Spain, at No. 24 of its concluding Observations of CEDAW / C / ESP / CO / 6 09-46099, as a pending challenge, (...) to ensure the mainstreaming of gender in the development and implementation of any program or set of stimulus measures that can be implemented in response to the global financial and economic crisis, and to follow up trends, inter alia collecting and analyzing data on the effects of measures taken and results achieved (...), according to gender, professional sector and type of work (full-time or part-time) “. It also reminds the state of its duty of mandatory compliance, and that this is to be included among the priorities and in its point 9 ‘urges the State-party that to submit the present concluding comments to all relevant ministries and other government structures at all levels, without omitting the autonomous communities, the central Parliament and the judiciary, to ensure their effective implementation.’

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In this vein, Europe, in Article 2.3 of Directive 2002/73 / EC stipulates that: Member States (that is, including Spain- (to) notify the Commission every four years of the texts of the relevant laws, regulations and administrative provisions of measures adopted pursuant to Article 141.1 (4) of the Treaty, as well as information on these measures and their implementation. Based on this information, the Commission will adopt and publish every four years a report establishing a comparative assessment of any measures in the light of Declaration No 28 annexed to the Final Act of the Treaty of Amsterdam [27].

In this same line, and with the need to incorporate Gender Impact Assessment reports in Spain (hereinafter IEIGs) in the preparation of both draft laws and regulations, Articles 22.2 and 24. (1b) of Law 50/1997, of 27 November the Government amended, by Law 30/2003, 13 October on measures to incorporate gender impact assessments in the regulatory provisions prepared by the Government. This especially relevant Act, which received considerable media attention, became the first legal norm that introduced the term gender and gender perspective into the Spanish legal system, claiming, as indicated in its Preamble that it was ‘to avoid unintended negative consequences that favor situations of discrimination and to improve the quality and effectiveness of EU policies’. In this sense, the new wording of Article 22.2 reads as follows: The process of drafting bills to which the the previous paragraph refers, will be initiated in the Ministry or Ministries responsible for drafting the corresponding bill, which will be accompanied by the brief, studies or reports on the need and opportunity for a report on the gender impact of the measures laid down therein, as well as a financial report settning out the estimated cost it will entail. In any case, the draft laws have to be informed by the Technical Secretariat, and the following provision was added to Article 24.1.b ‘In any case, the regulations must be accompanied by a report on the gender impact of the measures established therein’.

Subsequently, the Preamble to Organic Law LO3 / 2007, March 22 for Effective Equality of Women and Men (hereinafter LOIMH), carries out the mandatory transposition of Directive 2002/73 / EC of 23 September referred to above, and establishes the IEIG as the basic tool to achieve effective inter-gender equality. In Art. 19 LOIMH it expands the obligatory use of the IEIG from the general provisions that were already in force under Law 30/2003, to plans of special economic, social, cultural and artistic relevance that are subject to the approval of the Council of Ministers. In that regard, we must also note the provisions of Article 15 of LOIMH on mainstreaming the principle of equal treatment between

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women and men’ which states: The principle of equal treatment and opportunities for women and men will underlie the adoption and implementation of its regulatory provisions, the definition and budgeting of public policies in all areas and the development and active integration of all its activities.

However, it is necessary to mention the legal vacuum that existed until the approval of Royal Decree 1083/2009, 3 July which regulated the Memorandum of Legal Impact Analysis, even after the entry into force of the Act popularly known as Law of Equality-and despite the fact that it stated in its 10th transitional provision the deployment of gender impact, pledging that 'the Government, in this year 2007 will develop the regulations in accordance with the Gender Impact Act with the precision of the indicators to be considered in the preparation of this report’. This regulatory development, however, had to wait, until virtually exhausting the deadlines set by the Third Final Provision of Royal Decree 1083/2009, which stipulated: ‘The Manual of Gender Mainstreaming referred to in the first additional provision, once this Royal Decree is published in the Official State Gazette, shall enter into force on the day following its approval by the Council of Ministers and in any event on 1 January 2010’. The approval by the Council of Ministers of the Methodological Guide for drawing up the Memorandum of the Analysis of Legal Impact, which did not specify gender, and which the Ministries of the Presidency, of Finance, of Territorial Policy and Equality jointly drafted, was published on 11 December 2009. It referred to the analyses of economic and budgetary impact of laws and -thirdly - their gender impact assessment. However, this long period of ‘illegality’ from 2003 to almost 2010, in addition to its subsequent and poor regulatory development, has meant a procedural and incoherent chaos [28] due to the absence of consensus on some basic parameters of the mandatory IEIGs; namely, the body responsible for issuing it, and for its classification, content, development, and implementation. Nevertheless, this highly anticipated and long-delayed Decree did not focus strictly on the regulatory development of gender impact reports. In fact, it was not a specific guide to gender impact, but rather its purpose is precisely to order and simplify the various reports and memoranda that must accompany government draft laws and regulatory projects. Royal Decree 1083 / 2009 provides that these will be included in a single document that will be headed ‘Memorandum of regulatory impact analysis’ – a flexible methodological tool which is not legally binding but only informative and that does not, in any case, replace political decisions. It merely provides relevant information for the competent bodies to

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take the decisions they deem appropriate [29]. It is therefore a tool for better regulation, whereby the relevant information is systematized and ordered to assess the impact of a legal initiative to help in the process of approval. Fig. (1) below shows the scheme that responds to the Memorandum of legal impact analysis and its ultimate influence on the development of the final provision.

Iniciativa de Propuesta Normativa

Oportunidad de la Propuesta Necesidades Objectivos alternativas

..

Contenido y Analisis Juridico

Analisis de impactos Competencial Economicoy Presupuestario De Genero O t ro s i m pa c to s

.. ..

Proyecto Normativo

Fig. (1). Scheme of development of a legal norm. Key: Initiative of proposed norm; Opportunity of proposed norm *needs *alternative objectives; content and legal analysis; impact analysis- competence, economic and budgetary, gender, other impacts; draft law.

As Balaguer Callejón (2003) notes, With regard to gender impact reports, they are an effective tool to introduce the principle of equality in public policy through plans and legislation, facilitating decision making based on better information: about the possible effects that the measure will produce on men and women, warning its proponents on desired and undesired consequences and proposing, if necessary, its modification [30].

This last point about their informative and non binding nature makes us consider whether the regulatory development of mandatory IEIGs really responds to the additional guarantee that Article 3.2.a) of Directive 2002/73 / EC of 23 September demanded –transposing the 2002 Organic Law on Equality of 2007 and requiring, in turn, its regulatory development -, namely, that the Member States are obliged to take ‘the necessary measures to ensure that [...] any law, regulation or administrative provision contrary to the principle of equal treatment be abolished’, an assurance that I would suggest should come from equality organisms. We understand that this requirement goes beyond a mere proposal or suggestion that the provision be amended, but demands its immediate repeal, which should convert motivated IEIGs into an unavoidable procedural requirement for the current legislation.

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That said, and adopting as my own the words of Balaguer Callejón, “Once this law (Law 30/2003 of 13 October) is pàssed and makes impact reports obligatory, this assessment cannot be carried out as stated in the law itself where the agency and institutions will seek the criterion or scale to consider that we have a law that transgresses gender equality. [...] The adoption of a law that envisages gender impact reports without being subject to any judgment leaves virtually out of the question that one speaks to the effectiveness of the norm until new legislation on criteria and standards occurs’ [31].

However, the Preamble to Law 30/2003 of 13 October referred to Community legislation and the ‘Manual for Gender Mainstreaming, of the European Commission, 1998’, a guide that could have contributed to the homogeneous methodological preparation of IEIGs. Furthermore, the ‘Guide to practical application, for preparing Gender Impact Assessment Reports under the legal provisions of the Regulations prepared by the Government, according to Law 30/2003’, published by the Institute for Women in 2005 and drafted by the Foundation for Women, as well as those of the equality bodies of the Autonomous Communities could have been used. However, procedural chaos and a real lack of interest in the reasons for IEIGs led to these not being considered as an important element in the development of the norm. ‘In my view, this situation does not help to implement effectively the law for equality in many areas because the gender impact assessment has been said to represent the logical structure of planning: Reflect, apply Resources and evaluate Results’ [32]. If to this we add the little or total lack of interest from the drafters who evaded them, - using vague and inprecise formulas -, and even the failure to recognise their importance by those for whom they were intended, as the reason for the nullity of the contested law, we can see the irrelevance of a commitment to effective equality starting from the international and European order referred to above, so that it becomes simply a dead letter. And this is so because incorporating IEIGs does not merely mean incorporating a new document to the corresponding file. It should have a profound impact on the process of developing norms that must now integrate the perspective of equality between women and men throughout the entire development process and not just in the final phase. And this mainstreaming policy requires ‘a major reorganization of procedures for drafting laws, to overcome indifference or insensitivity that has hitherto characterized our normative policy, insensitive when not unconsciously sexist, although formally neutral, unaware of the differences between men and women and the possible uneven impact of the measures taken [33].

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An example of this reality is the Government’s response on the impact of gender of the anti-crisis measures in the Bulletin of the Congress of Deputies of 12 May 2010 in which it reduced the Municipal Fund for Employment 2010 (5,000 million euros) because it was understood that the 442,000 temporary jobs created by the Fund 2009 (€8,000 million) focused on the construction sector, and therefore had a distinctly masculine profile. Of 28,000 projects presented in 2010 by 8,000 municipalities, only 745 had a positive gender impact as shown in Table 2. Table 2. Projects with a positive gender impact in 2010 Projects

Millions of euros

Nº

%

Nº

%

Infant schools

692

2,5

146

2,9

Centres for care of dependents

39

0,1

158

3,2

Women’s Centres

14

0,05

An identical reflection could be made about the proposed reform of the Spanish public pension system that was subsequently agreed and approved in the Social and Economic Agreement of 2011 [34], signed by government, trade unions and employers’ organizations, which in the opinion of L. Galvez (2011) had a significantly negative impact on women [35]. ‘The proposal to increase the minimum contribution period from 15 to 20 years may further increase the gap in the level of pensions of women compared to men, which currently is 39% lower. This is because women have less participation in paid employment, their work is more precarious and more accidental as a result of discrimination in the labour market, the lack of men’s responsibility in domestic work and in caring and lack of social infrastructure to facilitate reconciliation. (Also) the payment of retirement pensions to housewives or recognition of childcare and dependents as contribution periods as proposed, is to perpetuate the sexual division of labor. Women are guaranteed survival only if they sacrifice their education and stay at home, but losing the right to a widow’s pension in case of divorce, while at the same time they are unlikely to reach 20 years of contributions necessary since the care of children usually extends over the most and better years of employability for women’ [36].

Therefore, as Diane Elson rightly argues [37], all economic action proposed from a gender perspective should not only serve to promote equality and to redress inequalities, but also to make them visible to the eyes of a society little used to recognizing them. This reflection also underlies the view expressed by the

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European Parliament in Resolution 2198/2002 and as embodied in the idea that ‘gender budgeting strategies not only involve the adoption of measures and programmes in terms of gender, but also in sensitizing public opinion about the problems of discrimination and commitment to fix it’ [38]. And the acceptance of this new gender focus at the national level, as can be deduced from the community and comparative experience, demands organic modifications; that is, a high-level commitment from all political and social actors involved to act in concert, not just the Government. ‘It demands of the heads of each sectoral policy to nclude the gender dimension in the design of these policies, which requires greater cooperation and coordination at all levels by those responsible for gender issues, and advocacy and awareness of everyone involved, among them first of all, those at the highest levels of the Administration and the Government’ [39].

This undoubtedly requires further efforts at training, information and awareness, and cannot remain as a mere political and formally correct label, an assumption of the discourse of gender perspective. But in turn, the authorities’ commitment to the integration of gender mainstreaming in all its areas of activity requires significant functional modifications, impregnating any act of the legislature, the executive and also the judiciary. In other words, those of JF Lousada Arochena (2004), …the adoption of a decision needs a prior study of its impact on men and women, its implementation will prevent the exclusion of women and, according to these criteria, the decision shall be reviewed periodically. When speaking of a decision by the public authorities we are referring to both normative and executive acts, and, as soon as they become law, to judicial acts. In short, any legislative, executive or judicial action [40].

Only joint and coordinated work of the three branches, as CEDAW - CEDAW / C / ESP / CO / 6 09-46099- reminds us, will enable the integration of the transverse dimension of gender to be a reality and not a mere chimera proclaimed equality. 4. THE REGIONAL COMMITMENT TO GENDER MAINSTREAMING The CEDAW Report, referred to above, reaffirms in Point 10 that the primary responsibility of the Government is ‘to implement fully the obligations that the State party has assumed under the Convention and especially about accountability. Also the Committee emphasizes that the Convention is binding on all public authorities and invites the State party to encourage their national and

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autonomous parliaments and its provincial and municipal chambers, in accordance with their respective rules and where appropriate, to adopt the necessary measures with regard to the implementation of these concluding observations and to the next reporting process of the Government under the Convention’ [41]. Not surprisingly, following this line, in parallel -and even before the state made the process of IEIGs mandatory, at the regional level Autonomous [ Communities such as Catalonia, Andalusia, the Basque Country, Galicia, Extremadura, Balearic Islands, and Murcia, incorporated the requirement for IEIGs into their legal systems in the process of drafting bills and regulations that the Governing Councils had to approve. Among them [42], generically, we must mention Law 4/2001 of April 9, amending Law 13/1989 of December 14 in Catalonia; Law 1/2002 of 28 February in Extremadura; Law 18/2003 of December 31 in Andalusia; Law 7/2004, of 16 July in Galicia; Law 4/2005 of 18 February, in the Basque Country [43]; Law 12/2006, of 20 September, for women in the autonomous community of the Balearic Islands, or Law 7/2007 of 4 April for equality between women and men in the Region of Murcia [44]. But some of these regional regulatory efforts require special mention for being stricter than those of the state and developed more promptly and in the correct form, although they could be improved. This is the case of Catalonia, a pioneer in requiring IEIGs, and Andalusia, a European example of good practice. With respect to the first, it is worth mentioning the LLei del Parlament 13/89, de 14 de diciembre, de Organización, Procedimiento, y Régimen Jurídico de la Administración de la Generalitat de Catalunya, (Law of the Parliament 13/89 of 14 December, Organization, Procedure and Legal Regime of the Administration of the Generalitat de Catalunya), which was amended by Llei 4/2001 of 9 April [45]. This was the first time that Spain met the demand for this tool (IEIG) for gender mainstreaming in the drafting of laws and regulations. It therefore stands as the first state and regional regulatory effort directed to implement as bindingthe requirement for Gender Impact Assessment Reports and greatly influenced what would become the drafting of State Law 30/2003 of 13 October. ‘Furthermore, it was in effect (Law 30/2003 of 13 October) a policy initiative of the political party Convergence and Union [46], that was adopted by the government of the nation, hence the practical repetition of the content of the Preamble and content of the law’ [47]. Specifically, Art. 63.2 of the Llei of the Parliament provides, inter alia, as a guarantee over the control of a possible arbitrary exercise of regulatory power, that: The proposed provision has to be accompanied by a memorandum, which must first express the regulatory framework in which the proposal is

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inserted, it has to justify the appropriateness and adequacy of the proposed measures for the purposes pursued, it has to assess the gender equality perspective, and must refer to the consultations that may have already taken place and other information of interest to know the process of development of the law. The proposed provision also has to attach (in addition to an economic study, a list of provisions affected and table of previous provisions) d) An interdepartmental report on the gender impact of the measures in the provision ...

In Andalusia, Law 18/2003 of 29 December approving Fiscal and Administrative Measures [48] and the prior inclusion of the chapter on Gender Measures deserves special mention, the Act becoming a pioneer in Andalusia by requiring an IEIG prior to assessing the extent to which the regulatory requirements developed by the Governing Council would affect the real situation of women and men with their subsequent implementation. Specifically, this particular Article 139.1 stipulates. All bills and regulations adopted by the Governing Council shall take into account the effectiveness of achieving the goal of gender equality, and respect for the rights of children under the Convention on the Rights of the Child. To this end, in the processing of those provisions, a report assessing the gender impact of their content shall be issued. In this vein, its regulatory development was approved by Decree 93/2004, 9 March, regulating the assessment report on the impact of gender on draft laws and regulations adopted by the Governing Council [49], making the IEIG a priori into a clear commitment of the Andalusian Executive to endow its legislative production with the necessary gender perspective to correct the false belief in the neutrality of laws. And with it to visualize how public action can affect men and women differently (...). Inequality and discrimination on grounds of sex will disappear depending on its proper implementation because ultimately, assessing the impact of gender means taking a firm step towards equality [50]. This effort at a regulatory policy was highlighted even by the European Commission who in the report published on Prior evaluation on equality between men and women, points to Andalusia as an example of good practice [51]. Among other things, it provides for the participation of the Andalusian Institute of Women (AIM) in the development process of Gender Impact Assessment Reports, through a feedback mechanism between the Competent Management Centre which prepares the Report and the AIM which reviews, enriches and notes relevant comments in an Observations Report accompanying the former (IOIEIG)’ [52], although it is true, that it is not binding.

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Currently the Decree 93/2004, of 9 March has been expressly repealed by Decree 17/2012, 7 February, as its sole repealing provision, and regulates an IEIG as an instrument to ensure the mainstreaming of equality between men and women in the development of the competences of the Andalusian government. ‘In this way, the Autonomous Community aim to update and adapt to the new statutory [53] and legal [54] framework the gender impact assessment report in bills and regulations as adopted by the Governing Council in the regulation that existed with Law 18/2003 of 29 December, by which fiscal and administrative measures were adopted, and Decree 93/2004, of March 9, whereby the gender impact assessment report in bills and regulations adopted by the Governing Council was regulated that existed with Law 18/2003 of 29 December, by which fiscal and administrative measures are adopted’ In this line of action, it was necessary to incorporate the Gender Equality Units in the administration of the Andalusian Government, regulated by Decree 275/2010, of 27 April in the process of drafting the IEIGs, with the aim of strengthening mainstreaming and coordinating the different actions between organs of the Andalusian Administration. But this intervention of the Equality Units shifted the role envisaged for AIM in the previous Decree. Thus, according to Article 4 of Decree 17/2012, the IEIG is the responsibility of the competent Directorate for initiating the process of drafting the provision in question as mandatory and must accompany the agreement to initiate the procedure for drawing up the provision. In this sense, Equality Units ‘advise the competent bodies on the preparation of reports evaluating gender impact, commenting on them and evaluating their content. Such observations and assessments will be incorporated in the record of drafting the law, plan or public work offer’. Later, as provided in Art.6, the competent Directorate responsible for issuing the IEIG shall forward it to AIM together with the observations of the Gender Equality Unit of the Ministry and the draft provision, incorporating them in the respective file before sending it to the General Commission of Deputy Ministers, and in the case of draft provisions where that procedure is not required, always before its approval. Finally, Article 7 provides for an annual follow-up report on the IEIGs issued, this time from AIM, who will evaluate the incorporation of the principle of equal opportunities between women and men, and the gender perspective of the provisions referred to in Article 3. Likewise, it establishes a special procedure for the preparation of the gender impact assessment report in the Andalusian budget [55], through the establishment of the specific Commission on Gender Impact [56] in the budgets of the Autonomous Community of Andalusia, regulated by Decree 20/2010, of 2

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February [57], as was already envisaged in Article 139.2 of the Law 18/200321 [58], with the hope that this was not a mere empty procedural formality. It provides for representatives, among others, two from AIM as the organ responsible for coordinating equality policies. In this regard, Art. 139.2 is expressed thus: ‘In order to ensure that the budget of the Autonomous Community is an active asset for the provisions of paragraph 1, a Commission dependent on the Ministry of Finance will be established with the participation of the Andalusian Institute for Women which will issue the assessment report on that project.’

This Commission will encourage and promote the preparation of draft laws with a gender perspective in the various Ministries and make gender audits in Ministries, businesses and agencies of the Government of Andalusia. However, I think a greater role for AIM would have been desirable as it is the body entrusted to coordinate equality policies, and as such its participation is replaced by the mandatory report of the Institute itself. The IEIGs have been incorporated in the budgets of the Autonomous Community of Andalusia for the last seven financial years (2006-2012), and are distinguished by applying the slogans of the Swedish model of the IEIG based on the three Rs: ‘Reality [59] (baseline situation in terms of inequality), Representation (participation of men and women in social, administrative and political authorities), and Resources (budget programmes specifically designed to combat inequalities)’ [60]. 5. JUDICIAL RESPONSIBILITY IN IMPLEMENTING THE IEIGS AND EFFECTIVE MOTIVATION That said, in so far as the IEIGs are a fundamental tool to achieve equality of opportunity in general policies and the mainstreaming strategy is developed in areas which have been traditionally excluded, we understand the legislator’s demand for it, its good development by the executive and its implementation by the judiciary can be a step forward in achieving effective equality for women and men. It provides legislative production with the necessary gender focus, the visualization that public action can affect women and men differently and removes the deluded and perverse belief that legal rules are neutral. However, this requirement for IEIGs should not be treated as simply a politically correct demand. It should pursue not only the purely formal fulfillment of processing IEIGs demanded by Organic Law (LO3 / 2007 of 22 March on

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effective equality of women and men) - but rather their real motivation, and in this sense the role of the Spanish judiciary is founded on its leadership, and even more if we remember the commitment to European Directive 2002/73 / EC that requires Member States ‘to take the necessary measures to ensure that any legal, regulatory or administrative provisions contrary to the principle of equal treatment is abolished’ which enhances the judicial control of constitutionality of laws and legality of regulations and the necessary repeal of regulations. The thesis of effective motivation of IEIGs as a guarantee of the effective implementation of the principle of mainstreaming could rely also on the jurisprudence of the Spanish Supreme Court, collected in its judgment of 21 January 1998, on transcendence of procedural formalities required as a sine qua non of the valid exercise of regulatory power; and the judgment of 13 November, 2000 (Division 3, of 13 November 2000, rec. 513/98) pronounced on the procedure of drafting regulations and demands (4th FJ- legal ground) meeting certain requirements as a special procedure. Its observance is ad solemnitatem and its defective performance is so serious that it can cause the invalidity of the provision that stipulates it. It therefore requires justification of the regulation that adopts it. In this vein, and while the judiciary has much to say and contribute as the ultimate guarantor of the principle of mainstreaming in the Spanish legal system, it is interesting to notice the decisions given in the case law of the multi-member courts of the Contentious Administrative jurisdiction [61], since Law 30/2003 which requires the IEIG (later strengthened by LO3 / 2007 of 22 March), to confirm whether this requirement is actually being pursued for good reasons, or if instead, it is adopted as yet another mere non-binding requirement. A general feature the courts’ significant lack of interest in IEIGs can be detected in different court decisions. The same applies to its developers who ‘cover the record’ benefiting from vague and imprecise formulas, and even the parties themselves [62], who are not concerned about IEIGs (whether in their absence, or non-justifivcation) as grounds for invalidity [63] of the Decree contested, and for other reasons considered relevant, such as economic reports, or hearing the parties. We have proved that the IEIG is complied with as a mere formality, without content. The keys were already announced previously-lack of sensitivity, information and training in gender that make acceptance of vacuous, undated and unsigned IEIGs, and even provided after the approval of the parliamentary initiative, which makes them irrelevant. This results in the failure of gender

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mainstreaming and in irreparable damage in the struggle (and goals achieved) for the effective equality of citizens, with formal - and automatic - compliance with the IEIG. A paradigmatic example of what is denounced is in the judgment of the Supreme Court 09/01/2007, Recurso (Appeal) 40/2005, (FJ 3 -3rd legal ground), where even the Court itself was surprised and the party appealing was even more surprised at the existence of a report on the value of gender impact assessment which was issued undated and without the signature of a civil servant entrusted to do it, which qualifies as absolute insensitivity showing the simple intention of covering the procedure (...) However, such allegations are not found together with claims for annulment even about what, accurately, qualifies as mere formal compliance for a report required by Art. 24.1.b) of Law 50/1997, of the Government, following the amendment made by Law 30/2003 of 13 October on measures to incorporate gender impact assessment in the regulatory provisions prepared by the Government. In any event, that court’s surprise at the serious procedural flaws in that IEIG is not usually the general tone. We can corroborate that the Contentious Administrative jurisprudence accepted, without question that the IEIG was accepted as the court record. This is the case of the STS 5327/2006 [64]; REC (Appeal) 44/04 against Royal Decree 291/2004 of 20 February, which regulated the milk levy scheme, which issued a proposal of the Ministry of Agriculture, Fisheries and Food and published it in the Official State Gazette No. 45, Saturday 21 February 2004, as well as other ‘reports which are not duly signed and do not have the indication of authorship, organ and job title as well as the identity of the person signing the document, which is a violation of Article 24..1.a)’. This is the case of the National Court Judgment 450/2008, before the ContentiousAdministrative Judicial review No. 109/2007 against the Order 763/2007 of 23 March amending the Order of 22 February 1996 for the implementation and development of the General Regulations of the financial management of Social Security approved by Royal Decree 1391/1995, of August 4. Interestingly, despite these procedural defects being alleged by the appelant, the National Court pronounced on the following grounds, verbatim: ‘This plea would have to be rejected given that the indication in these documents from the emanating organ through its marginal reference enables us to consider such defects as nondisabling irregularities lacking invalidating effect, without necessarily infringing by such reason what has been indicated in (Appeal) RD 1465/1999 of 17 September. The appeal was, however, allowed for its substance, not its form, as alleged by the appelant.

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Overall, it can be concluded ‘that these necessary changes in the drafting process of the rules have not been introduced to overcome inertia and routines and (that the courts should) require the draftspersons to take an integrated approach to the promotion of more equal relationships between men and women’ [65], and the excuse for their failure to develop it, albeit inadequately as we have shown, due to a regulatory vacuum is no longer valid as indicated by Royal Decree 1083/2009 of 3 July [66], which regulates the Memorandum of legal impact analysis and the Methodological Guide for the preparation of the Report of the Regulatory Impact Analysis of 11 December 2009. 6. BY WAY OF REFLECTION AND CONCLUSION Recently, on 21 October 2013, the Grand Chamber of the European Court of Human Rights in Strasbourg [67] rejected Spain’s appeal in the famous judgment that was such a headache for lawyers, politicians, and citizens in general. Certainly when an International Convention is signed and then ratified, that law and the agreement signed by the State becomes binding, and it cannot be otherwise, since it would be enough to show dissent- to not agree- by not signing it at the moment of its “official” presentation in the international framework. We already know the consequences brought about by the automatic application of that positive right as a violation of the right to liberty and security contained in Article 7 of the European Convention on human rights law. But this has not been the only international commitment made by the Spanish State in recent years, nor is it the only one which should raise serious consequences for its non-application. It is not my intention in this section to repeat, one by one, the list of conventions and treaties ratified by Spain to achieve effective equality of citizens whether treated or not in this article, but I need to refer, in these conclusions, to just a few, framing what is now called the Modern Antidiscrimination law with important consequences at the legal-political level, about the extent that the Spanish legislation, driven by these international (Beijing, 1995) and European demands (Treaty of Amsterdam and the Lisbon Treaty) has had (and has) on incorporating mainstreaming perspective on gender, transversely and and principally, as we know, in all regulatory processes Production, interpretation and application of the laws- and in all public policies, made manifest through laws or legal acts. This complex and obligatory process embodied in our renovated legislative science comes from the translation of the English neologism gender mainstreaming and is, if there are still doubts after reading this article, mandatory. Laws were passsed relatively recently as the result of all this framework of international legal work that although they were ‘not perfect’ and did not ‘achieve

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miracles’ did mean - at least in theory - an effort to take the rights of women, as citizens, seriously, besides incorporating into the Spanish legal system obligations assumed in the international context. Certainly, all this complex package of laws starts from the legal concept of discrimination against women embraced by CEDAW describing violence against women. This is structural gender violence, the result of discrimination exercised towards women as citizens- all those assaults they suffer as a result of socio-cultural constraints acting on the male and female genders, and which manifest -and have been manifested historically in each of the areas of personal relationships, placing her in a position of subordination to men; and this, as everyone knows, not only touches the private sphere, or more specifically the partner relationship, but also the public sphere, whether in the political, economic, social, cultural or civil field. The Declaration on Elimination of Violence against Women in Vienna in 1993 makes clear that this relationship is systemic, expressly acknowledging: that violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.

This recognition and assimilation of structural gender violence as a form of discrimination is therefore more than a circumstantial question. This is a first step in the struggle to eradicate it and a commitment by the Central and Regional Administrations not to be left out of what they describe as ‘one of the most flagrant violations of the fundamental rights such as freedom, equality, life, security and non-discrimination enshrined in our Constitution’ and ‘an obstacle to the full development of women and society’. The popularly (un) known Integral Law [68], Effective Equality Law [69], or Law 30/2003 of 13 October on measures to incorporate gender impact assessment reports in the regulatory provisions prepared by the Government [67] are examples of this whole legislative effort, which responds to the commitment acquired with the principle of gender mainstreaming. And this correct definition and conceptualization of gender violence and discrimination embraced in Spanish legislation also showa clearly that it is this that creates vulnerability in humans (citizens) rather than that women boast of being vulnerable individuals (victims). We cannot, therefore, fail to appreciate these legislative efforts - and shield them in turbulent times like the present - noting the complexity involved in introducing this new reconceptualization of the principle of equality into the Spanish legal system.

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But responsibility and commitment to effective equality is not a minor issue, nor is it a matter that is exclusively for the legislature nor yet a mere formality to comply with Europe or the International order, sick of urging Spain to ensure gender mainstreaming as a main current in the development and implementation of any program or set of stimulus measures that can be implemented in response to the global financial and economic crisis. The effectiveness of the principle of transversality (streaming), of the dimension of gender (gender), as mainstreaming (main principle), does not operate uniformly, as we have seen, for all public authorities and the current IEIGs to satisfy the appearance of a requirement demanded by the current Legislative Science. But along with the consequences of breaches of international laws and conventions targeted at the beginning of this section, and connecting it with the topic at hand, relying seriously to eradicate gender violence, that is, achieving effective equality of women, as citizens, not as a vulnerable collective -and rereading Article 2 of CEDAW, that obliges the statesto be responsible for it, and not forgetting that failure to do so under Resolution 45/1994 of Commission on Human Rights assigns -for the first time- responsibilities to the States, whether for acts or omissions for violence against women. Spain has to answer for this commitment, nor forget it when planning measures it should adopt in a more or less immediate future. In this task it should bear in mind that the step from the ‘simple legal protection of victims of domestic violence’ to the need to combat and eradicate gender violence towards citizens is not casual or haphazard but involves breaking with the idea of ​vulnerable, weak creatures in need of protection, resulting in paternalistic, protective treatment and replacing it with the recognition of women’s citizenship, which should it fail to do so, would demonstrate its own inability, the incapacity of the state, to ensure women as citizens have the full exercise of fundamental rights to life, integrity, equality, freedom and security. Thinking in this way we see, in addition to the pending task incorporated by this new Legislative Science such as the optimal implementation of Impact Assessment Reports on Gender Impact, today stil deficient, other dangers lurking and threatening to violate the articles of the international agreements signed by Spain mentioned above. Just a note. At present, some relevant voices as far as policy is concerned, plan to dilute Gender Violence in the draft reform of the Penal Code and incorporate it again in so-called domestic or family violence [70], disabling the destructuring component of modern antidiscrimination law. This would be a giant step backwards in the struggle for the eradication of citizens’ structural discrimination, and certainly a breach of international law ratified by Spain. The million dollar question is: will there be consequences?

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CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

An example from the press showing the the assimilation of women and collective can be found in the supplement on money and employment/ INFOEMPLEO, ‘Una brecha que no cierra’, signed by E. Arranz, of the daily newspaper, Ideal, of 6 March 2011 and reporting the alarming increase in unemployment of 4.3 million workers in Spain. It pointed out that Spain thus became the country with the highest rate of female unemployment in Europe. Nevertheless, it stated, ‘In comparison with other European countries Spain mis at the tip of the list, the percentage of unemployed young people being especially significant, above all those under 25 years of age. But another of the factors from these upstting tablesis that of female unemployment, a sector that should be added to those of young people and immigrants as the most vulnerable of the consequences of the crisis’.

[2]

In this sense, it is intresting to recall in the history of human rights the struggle of the Latin American Delegation to replace the excluding expression ‘rights of man’ by the inclusive phrase ‘human rights’ during the drafting by the Commission. Due to that struggle, for the first time in the in the history of the emancipation of human beings, the term sex was introduced as amongst the prohibited distinctions, declaring in Article 2 (1), ‘Everyone is entitiledto all the rights and freedomsset forth in this Declaration, without distinctionof any kind,such as race, colour, sex, language,religion, political or other opinion, national or social origin, property, birth or other status’, Universal Declaration of of Human Rights of 1948.

[3]

See Facio A. Cuando el Género suena, cambios trae (Una metodología para el análisis de género del fenómeno legal). San José de Costa Rica: ILANUD 1999; p. 16.

[4]

See Facio A. El Derecho como producto del patriarcado. In: Facio A, Camacho R, Eds. Sobre patriarcas, jerarcas, patrones y otros varones (Una mirada género sensitiva al Derecho). San José de Costa Rica: ILANUD 1993; p. 17.

[5]

Discrimination against women is understood as ‘any distinction, exclusion or restriction based on sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’, Convention on the Elimination of All Forms of Discrimination against women, CEDAW.

[6]

See Gil Ruiz JM. Los Diferentes Rostros de la Violencia de Género. Madrid: Dykinson 2007.

[7]

Murguialday Martínez C. Igualdad y empoderamiento de las mujeres, ¿avanzamos hacia una nueva frustración. Conferencdelivered in the Salón de Actos of the Delegation of the Government of Andalucía in Córdoba on 21 May 2009, at the Estudios Trasnacionales (INET).

[8]

As immediate imternational precedents it is worth highlighting some such as the Women’s World Conference in Nairobi, 1985; The Commission’s Proposal on the Legal and Social Condition of Women of the UN in 1987, or at the European level, the Third Programme of Community Action for Equality of Opportunities (1991-1995).

[9]

The Declaration of Beijing and the Platform for Action, drawn up at the fourth World Conference on Women in Beijing (1995) has been published in the series of Documents of the Institute of the Women (1991-1995).

[10]

See Barrère MA. La interseccionalidad como desafío al mainstreaming de género en las políticas públicas. Revista Vasca de Administración Pública 2010; 87-88: 240-241.

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[11]

Literally: “to support government-wide mainstreaming of a gender-equality perspective in all policy areas” (paragraph 201), The Beijing Platform for Action.

[12]

Literally: “(to) promote an active and visible policy of mainstreaming a gender perspective in all policies and programmes” (paragraph 202). Report of the Fourth World Conference on Women, Beijing, 4- 15 September 1997 (United Nations publication, Sales No. E.96.IV.13), chap. I, resolution 1, annex II.

[13]

See Rey Martínez F. Comentario a los informes del Consejo de Estado sobre el impacto por razón de género. Teoría y realidad constitucional 2004; 14(2): 500-523.

[14]

Communication ‘Incorporating equal opportunities for women and men into all Community policies and activities’. COM (96) 67 final 21 February 1996.

[15]

Manual for gender mainstreaming of the European Commission, 1998.

[16]

Preamble to Law 30/2003 of 13 October on measures to incorporate gender impact assessment in the regulatory provisions prepared by the Government.

[17]

The principle of mainstreaming in the field of Community law on a Community action program consolidates the Council Decision 95/593 / EEC of 22 December 1995 in the medium term for equal opportunities men and women (1996-2000).

[18]

Council Decision 2001/51 / EEC of 20 December 2000 concerning a Community action programme on the Community strategy on equality between men and women (2001-2005). The text of the Council Decision literally transcribed in the Preamble to Law 30/2003 of 13 October on measures to incorporate gender impact assessment in the regulatory provisions prepared by the Government. Official State Journal (BOE) No. 246 of 14 October 2003, pp. 36770-1.

[19]

See Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on a Community Framework Strategy on equality between men and women (2001-2005).

[20]

Regulation (EC) No 1260/1999 of 21 July 1999 laying down general provisions on the Structural Funds.

[21]

The result of this transposition-as well as of Directive 2004/113 / EC implementing the principle of equal treatment between men and women in access to goods and services and supply- into Spanish law, has been LO 3/2007 of 22 March for the effective equality of women and men, popularly known as the Equality Act.

[22]

The previous wording of its provisions –Articles 3.2.a), 4a) and 5.2.a) – obliged the Member States to take “the necessary measures in order that they are to be deleted”. Although it seems that the nuance is minimal, the new wording requires more: the guarantee of repeal.

[23]

Even when a specific guarantee is not established, it seems reasonable to grant this power to equality bodies to which the European directive attributes the power to ‘make recommendations on any issue relating to discrimination.’.

[24]

See Lousada Arochena JF. El informe sobre el impacto de género en la elaboración de la normativa. La Ley 2004 September; 6092: 3.

[25]

In this regard, see Woodward AE. Too late for gender mainstreaming? Taking stock in Brussels. Journal of European Social Policy 2008; 18(3): 289-302.

[26]

See Rodríguez-Piñero M. El informe sobre el impacto por razón de género en la elaboración de las disposiciones normativas. AEQUALITAS 2004; 15(July-December): 36.

[27]

Moreover as Article 2.2. of Directive 2002/73/CEE. Member States shall communicate to the Commission within three years of the entry into force of the Directive all the information necessary for the the Commission to draw uip a report to the European Parliament and the Council on the application of this Directive’.

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[28]

In this respect, see Collantes B, Sanchís A. La evaluación del impacto de género en la normativa estatal y andaluza. Jaén: Instituto de Estudios Giennenses/Diputación provincial de Jaén 2009.

[29]

Cfr. Guía Metodológica para la elaboración de la Memoria del Análisis de Impacto Normativo, pp. 45. This can be downloaded in PDF format at http://www.mpt.es./areas/funcion_publica/ iniciativas/impacto_normativo.html.

[30]

Ibidem .

[31]

See Balaguer Callejón ML. Ley 30/2003, sobre medidas para incorporar la valoración del impacto de género en las disposiciones que elabore el Gobierno. Artículo 14 una perspectiva de género. Boletín de Información y Análisis Jurídico 2003; 14: 25.

[32]

See Picó Lorenzo C. Una visión jurisdiccional sobre algunos aspectos de la Ley para la Igualdad. In: Cuadernos digitales de formación 2008; p. 24.

[33]

See Rodríguez-Piñero M. El informe sobre el impacto por razón de género en la elaboración de las disposiciones normativas 2004; 15(July-December): 37.

[34]

The Social Pact, necessary for the recovery of the Spanish economy and the creation of employment, was signed by the Government, the Trade Unions and the Employers’ Association on 2 February 2011.

[35]

The pensions for separated or divorced widows or those whose marriage had been annulled were restricted. Law 40/2007 of 4 December, on measures for Social Security.

[36]

This author also asserts, ‘If they truly want to save the Spanish public pension system they do not only have to reduce the expenditure as the reform does, but use strategies that provide more revenue and among these create equality between men and women and the greater and better participation of women needs to be one of its main components’. See Gálvez L. ‘La nueva reforma. Las pensiones y las mujeres’ in www.noalmaltrato.com/2011.

[37]

In respect of this author, see Elson D. Iniciativas de Presupuestos Sensibles al Género: Dimensiones Claves y Ejemplos Prácticos. In: UNIFEM, El género: Iniciativas de Presupuestos. New York: UNIFEM 2002; pp. 15-29; as well as Justicia de Género, derechos humanos y políticas económicas neo-liberales. In: Molyneux & Razavi S, Ed. Justicia de Género, Desarrollo y derechos humanos. Oxford University Press 2002: pp. 78-114. The translation is mine.

[38]

And this is largely because the budget perspective not only promotes gender equality, but also efficiency (better quality of public services and better adapted to the needs of citizens) and transparency (better access to public knowledge and understanding of public revenue and expenditure). European Parliament Resolution 2198/2002.

[39]

See Rodríguez-Piñero M. El informe sobre el impacto por razón de género en la elaboración de las disposiciones normativas. cit., p. 38.

[40]

See Lousada Arochena JF. El informe sobre el impacto de género en la elaboración normativa. La Ley 2004; 6092: 1-4.

[41]

See CEDAW/C/ESP/CO/6 09-46099, 7 August 2009, point 10.

[42]

For detailed information on these significant regional efforts which there is no space to discuss now, see the study of Fundación Mujeres. Buenas prácticas de las Administraciones Públicas en materia de Mainstreaming de Género. Instituto de la Mujer. Ministerio de Trabajo y Asuntos Sociales. Observatorio 8. Madrid 2007.

[43]

See Article 19 of Law 4/2005 of 18 February, of the Basque Country Autonomous Community, for equality of women and men, which refers specifically to gender impact assessment. Furthermore, Article 3 raises “the integration of the gender perspective” a general principle that should govern and guide the actions of the Basque government, and provides in paragraph 4: “The Basque authorities have to mainstream gender in all its policies and actions, so that it establishes in all of them the general aim to eliminate inequalities and promote equality between women and men.

[44]

The Manual for drafting gender impact reports, designed by the Institute for Women of the

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Autonomous Community of Murcia is outstanding. [45]

Official Journal of the Generalitat of Catalonia, No. 3371 of 19 April 2001 and BOE No. 112 of 10 May 2001.

[46]

The intervention of parliamentarian Exposito Molina, of the Catalan Parliamentary Group Convergence and Union, presenting the proposal to the full Congress, under the policy of equality, priority -Objective of the party, is worth noting “which would allow us to know in advance how the laws will affect the population according to its gender.” S.D. Full and Provincial Permanent Congress, 0216, DEC 17, 2002, pp. 10893-4.

[47]

See Balaguer Callejón ML. Ley 30/2003, sobre medidas para incorporar la valoración del impacto de género en las disposiciones que elabore el Gobierno. Artículo 14, una perspectiva de género. Boletín de Información y Análisis jurídico 2003; 14: 21-23.

[48]

Ley 18/2003, of 29, approving Fiscal and Administrative Measures of the andalucian Autonomos Community. BOJA nº 251, 31 December 2003.

[49]

Decreto 93/2004, de 9 de marzo, which regulated the gender impact assessment report in bills and regulations approved by Governing Council, BOJA nº 50, 12 March 2004.

[50]

VVAA. El impacto de Género: una medida pionera para alcanzar la igualdad. Meridiam 2005; 37: 24.

[51]

Communication of the Commisision to the Council, to the European Parliment, to the Economic and Social Committee and to the Committeee of the Regions on the Integration of equality between men and women in the documents of programmes of the Structural Funds for 2000-2006. COM (2002), 748 final, 20/12/2002.

[52]

See Collantes B and Sanchís A. La evaluación del impacto de género en la normativa estatal y andaluza. cit., p. 20. For the comparison between both legal systems, as well as it specific follow-up, see Gil Ruiz JM. Las Nuevas Técnicas Legislativas en España. Los Informes de Evaluación de Impacto de Género. Tirant lo Blanch. Valencia 2013.

[53]

Article 114 of the Statute of Autonomy for Andalusia provides that in the process of making laws and regulations, the Autonomous Community shall take into account the gender impact of their content.

[54]

Law 12/2007 of November 7, for the Promotion of Gender Equality in Andalusia provides in Article 6 and 31.3 thereof, that it is compulsory to effectively incorporate the goal of gender equality in all draft laws, regulations and plans approved by the Governing Council, by providing that, for this purpose, in the process of handling these provisions, a report assessing the gender impact of the contents thereof shall be issued.

[55]

It is expressly excluded from the scope of Decree17/2007 of 7 February in Art.3.3.

[56]

Decree 20/2010, describes the nature of the Commission as a ‘specific advisory body with administrative involvement, which aims to boost that the budget of the Autonomous Community of Andalusia is an active element in achieving the goal of equality between women and men’. The Commission shall be composed of two spokespersons representing each Ministry, two representing the Andalusian Institute of Women (hereinafter AIM) and two of the Andalusian Institute of Statistics. The Presidency is for the competent Vicecouncillor on Finance and the Vice President competent as head of the Directorate General of Budget.

[57]

Decree 20/2010, of 2 February by which the Commission regulates the Impact of Gender in the Budget of the Autonomous Community of Andalusia, BOJA No. 38 of February 24, 2010.

[58]

Art 139.2 of Ley 18/2003, 29 December, por la que se aprueban medidas fiscales y administrativas de la Comunidad Autónoma Andaluza, BOJA 31 December 2003.

[59]

In the Impact Assessment Report on the effect of gender on the Andalusian Gender Budget 2011, the section on Reality contains very comprehensive and updated statistical data on the situation of factual inequality of women and men. 95 indicators are collected together, grouped under 14 headings; it presents as a novelty, inter alia, the analysis of the staff of the Administration of Justice, which develops the powers transferred to the autonomous community in Justice, and assesses the incentive

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fund first convened in 2010 for the in Andalusian directional centres in order to deepen the preparation of budgets from a gender perspective. [60]

See Cubillo Rodríguez C. Los presupuestos con enfoque de género y los informes de impacto por razón de género en los presupuestos públicos. Speech made in Escuela Judicial and organized by CGPJ on 25 October 2010.

[61]

The detailed study of the different judgments as well as access to the records of each of them can be found in Gil Ruiz JM. Las nuevas técnicas legislativas en España. Los Informes de Evaluación de Impacto de Género. Valencia: Tirant lo Blanch 2012.

[62]

This is the case of MAD STSJ 638/2009 of 30.01.2009. The Court found it in the record, but was not specifically interested in it. In its 2nd legal grounds it affirmed that all the antecedents with the IEIG were included, in the file. We do not know whether the Court was interested in it, and if found effective motivation, in addition to the authorship, date, content. Nor was it expressly claimed by the plaintiff. Thus it seems that there was a certain lack of interest about the IEIG and not only by the Court, the last to apply the law who, at least, mentions it as evidence in the record, although it seemed a mere formality, but it was detected, and not exactly by the Court, by plaintiffs who did not even allege it.

[63]

CAT STSJ 14321/2005, of 12/07/2005. In this case, the plaintiff emphasizes the requirements of Art. 63 of Law 13/89, which includes the IEIG, however, it was then not alleged as grounds for annullment, and (legal ground 2) ‘lack of justification for the timing and adequacy of the proposed measures to the desired aims, (and) lack of economic studies in terms of cost-benefit ‘ and ‘a study of the cost of financing’.

[64]

Subsequently, the Administration referred it, but the contents are not known as they do not appear in the sentence. They did not insist on any aspect, as further derogation from the general provision at issue, according to the judgment of the Supreme Court 5327/2006, “deprives the controversy of any interest or practical usefulness as its object has disappeared”.

[65]

See Rodríguez-Piñero M. El informe sobre el impacto por razón de género en la elaboración de las disposiciones normativas. AEQUALITAS 2004; 15(July-December): 37.

[66]

Royal Decree 1083/2009, of July 3, by which the brief of regulatory impact analysis is regulated. BOE No. 173, of 18 July 2009. Also, see the Methodological Guide for the preparation of the Report of the Regulatory Impact Analysis of December 11, 2009.

[67]

The Grand Chamber of the European Court of Human Rights rejected the appeal of Spain against the sentence imposed on it by applying the well- known Parot doctrine for the ETA prisoner Inés del Río, for acts prior to 1995. According to the Strasbourg Court this is a violation of Article 7 of the European Convention on Human Rights, since it attacked the freedom and security of the ETA prisoner.

[68]

LO 3/2007, 22 March, for the effective equality of Women and Men. Andalusia passed its counterpart, in the autonomous context, with four complex titles: Ley 12/2007, 26 November, on the promotion of Gender Equality in Andalusia.

[69]

At the regional level, we speak of Law 18/2003, of 29 December, approving fiscal and administrative measures, of Law 12/2007 of 26 November, to promote gender equality in Andalusia and Decree 17 / 2012 of February 7, on the preparation of the Report of Gender Impact Assessment, BOJA, No. 36 of 22 February 2012 amending Decree 93/2004, of March 9. All these satisfy the demands of Article 114 of the Andalusian Statute of Autonomy.

[70]

At the regional level, we speak of Law 18/2003, of 29 December, approving fiscal and administrative measures, of Law 12/2007 of 26 November, to promote gender equality in Andalusia and Decree 17 / 2012 of February 7, on the preparation of the Report of Gender Impact Assessment, BOJA, No. 36 of 22 February 2012 amending Decree 93/2004, of March 9. All these satisfy the demands of Article 114 of the Andalusian Statute of Autonomy.

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CHAPTER 9

Right to the Truth and Victims of Terrorism as a Vulnerable Group Belén Ureña Carazo* Judge and Researcher, University of Jaén, Jaén, Spain Abstract: Victims of terrorism are particularly vulnerable because this type of crime is one of the violent crimes that constitutes a fundamental violation of human rights. Thus, we could classify this special group as a vulnerable group that, as such, deserves special protection within the legal sphere. So, in our opinion, one of the procedural rights that should make up the legal status of victims of terrorism is “the right to the truth of the facts”, in which the moral aspect is so important. That is why the reconstruction of the truth of the facts serves as the basis for proper reparation of the damage suffered by the victims and, therefore, for dispensing justice, one of the higher values in our legal system, which is effectively attained in judicial proceedings when a just ruling is issued, with the judge being the main guarantor thereof. Therefore we analyse what constitutes “the right to the truth” at the procedural level, specifically, that is construed as the right of the parties to know the truth of the facts in judicial proceedings and the judge's corresponding duty to direct the proceedings towards discovering the truth.

Keywords: Proceeding, Truth, Victims of terrorism, Vulnerable group. 1. INTRODUCTION Terrorism is one of the violent crimes that constitutes a clear and fundamental violation of human rights. Currently, we are witness to the deep current of empathy and social support that Spanish society is showing towards victims of terrorism, on which “recae a menudo una especial e intensa victimización” [1]. Therefore, we should take into consideration that the victims of this type of crime are particularly vulnerable, in so far as “la posición de la víctima del terrorismo es la de alguien que se encuentra atacado sin saber por qué motivo” [2]. Thus, we could classify this special group as a vulnerable group that, as such, deserves special protection within the legal sphere. Corresponding author Belén Ureña Carazo: International Doctor of Law, Judge and Researcher, University of Jaén, Jaén, Spain; Tel: 0034 915330561; E-mail: [email protected] *

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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Moreover, following Castañón Álvarez, victims of terrorism are characterized by a series of distinctive traits, such as “fin instrumental de la agresión, deshumanización de la víctima desde la perspectiva del agresor, intencionalidad de la victimización, víctimas de violaciones de derechos humanos y la sociedad como víctima final del acto terrorista” [3]. This also demonstrates the higher degree of vulnerability of such victims, for an act of terrorism is undoubtedly a serious attack against human dignity. For all these reasons, the victims of terrorism are the subject of increasingly strong legal protection in the legal systems of European countries, at both national and international levels, in an attempt to work together to combat this highly serious violation of human rights. In Spain, for example, we could mention the enactment of the recent Law 29/2011, of 22 September, on the Recognition and Full Protection of Victims of Terrorism, the Preamble of which recognises the respect and social support due to victims, based on the principles of memory, dignity, justice and truth, which are all needed to obtain fair reparation. Besides, in line with European regulations on the subject and in response to the demands of Spanish society, a Draft Bill on the Standing of Victims of Crime was approved last August, with the aim of “ofrecer, desde los poderes públicos, una respuesta lo más amplia posible, no sólo jurídica sino también social, a las víctimas, y no sólo reparadora del daño en el marco de un proceso penal, sino minimizadora de otros efectos traumáticos en lo moral que su condición puede generar y con independencia de su situación procesal”. The Draft Bill contains a catalogue of the rights of victims of crime, including the crime of terrorism. Hence, for these effects, if we focus on the aforementioned principle on which the truth is based, we should highlight that, in our opinion, one of the procedural rights that should make up the legal status of victims of terrorism is the right to the truth of the facts. This would appear to be an essential right in a regulatory framework that is a guarantor of the rights of victims, in view of the higher value of justice. In this paper we will study the right to the truth, although, in general, we should make a series of prior considerations that enable us to outline the right. Firstly, we should start with an idea of how important it is for the victims of such crimes to know the truth of the events that occurred in a terrorist attack. This is because, in these specific cases, the criminal sanction imposed on the perpetrator does not suffice [4]. As Muñoz Escandell has correctly pointed out “la importancia de la determinación de la verdad es incuestionable con respecto a los delitos de lesa humanidad, genocidio, crímenes de guerra y violaciones manifiestas de los derechos humanos, no siendo el terrorismo una excepción en este sentido” [5]. Furthermore, it should be taken into consideration that “el

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derecho a la verdad como conocimiento veraz de los hechos se encuentra comunicado con otro aspecto esencial, la memoria, como reconocimiento público de esa verdad y, consecuentemente, de las propias víctimas” [6]. At this point, in Spain, we should highlight the document of basic guidelines drawn up at the meeting of associations and foundations of victims of terrorism, held in Madrid on 23 November 2010, to decide the governing principles for a model of the end of ETA without impunity. An essential item in the rules was “hacer posible el esclarecimiento de todos los atentados que están sin resolver y que suman centenares de asesinados, heridos, secuestrados y extorsionados sin autor conocido” [7]. Secondly, as a consequence of the above, reconstruction of the truth of the facts serves as the basis for proper reparation of the damage suffered by the victims and, so, for dispensing justice. Reparation includes both material and moral damage, with the latter being damage pertaining to an individual's spiritual background, which is affected by physical and mental suffering [8]. In this sense, Muñoz Escandell indicates that “los aspectos inmateriales constituyen una herramienta transformadora para la consecución de la paz social y dotan, por tanto, a la reparación de una característica dinámica que va mucho más allá del momento de la indemnización para constituirse en un proceso que evoluciona en el tiempo y tiñe la vida de una víctima que, en la mayoría de los casos, sufrirá secuelas que le acompañarán siempre” [9]. That is why the moral aspect of victims' right to know the truth of the facts is so important. It leads us to sustain that it is a matter of “un derecho autónomo con su propia base jurídica, por cuanto el proceso de esclarecimiento de lo sucedido y el reconocimiento de tales hechos constituyen en sí mismos una medida que restaura la dignidad de la víctima” [10], as well as a fundamental right “para la dignidad inherente del ser humano y del que son tributarios las víctimas, sus familiares y, en última instancia, la propia sociedad” [11], which we will address in he following sections. 2. WHAT CONSTUTITES THE RIGHT TO THE TRUTH? When referring to the right to the truth, we should specify beforehand that, regardless of its configuration and repercussion in international law [12], we will address the right at the procedural level, specifically. This is because, in our opinion, the right to the truth of the facts is intrinsically linked to the higher value of justice, which is effectively attained in judicial proceedings when a just ruling is issued, with the judge being the main guarantor thereof. Notwithstanding the foregoing, a brief mention could be made of some of the definitions proposed for this right at the international level, starting with the one

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given by Vivian Newman, according to which “es el derecho individual y colectivo a saber los hechos, las circunstancias, las causas, las consecuencias, los responsables y las víctimas de las violaciones de los derechos humanos y el derecho internacional humanitario” [13]. Fajardo Arturo conceives the concept as “el derecho que surge a las víctimas, sus familiares y a la sociedad en general, en los casos en que han sucedido graves violaciones de derechos humanos, y en virtud del cual, el Estado tiene la obligación de adelantar las medidas para lograr establecer la verdad sobre los hechos, los grupos organizados que hayan participado de la violencia deben contribuir a establecer la verdad, y la sociedad en su conjunto tiene el deber de conocer lo sucedido” [14]. Having arrived at this point, we should make an observation: with regard to terrorism, the right to the truth presents a collective dimension that transcends the strictly individual level. So, as Fajardo Arturo indicates, “se trata del derecho de toda la sociedad a conocer la verdad sobre las causas, modos y consecuencias de un conflicto armado, en especial cuando se trata de hechos que generan graves y sistemáticas violaciones de derechos humanos y, particularmente, se exige para que los procesos de transición entre el conflicto y la estabilidad sociopolítica respondan a una necesidad social por conocer su historia” [15]. That is why is it essential, in our opinion, for the sentence issued by a judge in judicial proceedings in which the victims of terrorism find themselves immersed should correspond to the events that actually occurred between the parties and be properly grounded. The collective or public role of a judicial ruling in a democratic state worthy of the name should not be forgotten, as democracy is based on the people's participation in the adoption of collective decisions. As Gascón Abellán draws attention to, “es un error pensar que la decisión judicial tiene únicamente una dimensión privada, que interesa sólo a las partes directamente afectadas por ella: la sentencia es también un acto público, colectivo, por cuanto representa el ejercicio de un poder que es público y que, por tanto, ha de ser no sólo interna, sino también externamente controlado” [16]. So, from a strictly procedural point of view, “right to the truth” is construed as the right of the parties to know the truth of the facts in judicial proceedings and the judge's corresponding duty to direct the proceedings towards discovering the truth [17]. However, the truth in law has not been a peaceful matter, for it poses some problems, such as whether it is possible to speak of the truth within the legal sphere and, within that sphere, in judicial proceedings. In the event of an affirmative answer, what notion of truth does law address and, lastly, what role does truth play in the proceedings? These are the questions we will address in a few brief considerations.

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Firstly, it should be specified that, at the outset, we adopt the idea that there is no absolute truth because, in the reality of human experience, the truth is always relative. As Taruffo justly indicates, “no se habla aquí de Verdad Absoluta, dado que la verdad con las iniciales mayúsculas ha quedado patrimonio exclusivo de algunas metafísicas y religiones integristas, sino simplemente de la verdad que puede ser descubierta en el mundo incierto y frágil de las cosas humanas” [18]. So, we refer to truth as a “reasonable” truth in a specific context – judicial proceedings – that constitute an aspect of human reality, like many other aspects. What we do not share is the position of those who give up trying to attain any sort of truth in law. This is known as veriphobia, or the culture of non-truth [19], which is characterised by great scepticism with regard to admitting the truth in any field. In judicial proceedings, veriphobia is the impossibility of determining the truth of the facts. In this respect, we fully share criticism of this sceptical attitude by Taruffo, who is a staunch defender of the value of truth in and out of judicial proceedings, on four grounds: moral, political, epistemological and legal. One. Truth is a moral value, such that “sería inaceptable cualquier sistema moral que de algún modo atribuya legitimación a la falsedad” [20]. This leads us to a configuration of truth as “un requisito esencial de la integridad intelectual del hombre y de la sinceridad y confianza sobre las cuales deberían basarse las relaciones interpersonales” [21]. Two. Truth is a political value that is characteristic of liberal democracy, insofar as a “covenant of truth” with the citizenship should lie at the core of political power. In this regard, Taruffo stresses the growing social value of truth, which is also reflected in politics. Truth is an essential component of a democratic State as “para un Estado democrático siempre es incorrecto mentir a sus ciudadanos. Éstos, por otra parte, no estarán en condiciones de formarse opiniones correctas y de ejercer su derecho de crítica si están inmersos en un sistema basado en la mentira y el ocultamiento de la verdad” [22]. In short, truth “costituisce un valore fondamentale della democrazia, che non esiste senza il principio di verità nei rapporti tra il potere e i cittadini” [23] and adds that “la verità è un valore democratico poiché solo sulla base di essa è possibile smascherare le ««verità avvelenatee», ossia le menzogne del potere” [24]. Three. Truth is an epistemological value, because the theory of knowledge should be directed toward the search of truth. So, with regard to the existence of truth, Taruffo opts for critical realism. However, in his opinion, even if this point of view is disregarded “es posible suponer la existencia de una verdad racionalmente cognoscible y demostrable” [25], which poses an epistemic conception of truth.

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Four. Truth is a legal value, because “existe una conexión directa, muy elemental, entre la verdad y el Derecho, entendida como el hecho de que un sujeto puede tener o no un derecho previsto por la ley, siempre y cuando sea verdadero que ese sujeto está en las condiciones de hecho que la ley considera válidas para ese derecho” [26]. So, in this context, the procedural value attributed to truth stands out, as the aim of judicial proceedings is to resolve controversies via just decisions, and justice is served when it is based on true facts. Secondly, having admitted the possibility of obtaining the truth in law, with regard to the notion of truth that is relevant to judicial proceedings, several theories on truth have emerged, such as the theory of correspondence, the theory of coherence, pragmatic theory, the theory of truthmakers and semantic theory. We cannot study them all here because we would exceed the scope of our paper [27]. We shall limit ourselves to following the first theory on the list, i.e., the theory of correspondence, which takes precedence over the others. It is construed as the truth that corresponds to the empiric reality of the facts, which, according to Taruffo, leads us to a realistic conception of truth as “aproximación de la reconstrucción procesal de los hechos a su realidad empírica o histórica” [28]. We should also take into account there are no different types of truth, depending on whether inside or outside of the judicial proceedings. There is only one truth, which is why there is no basis for the widespread – and still used – distinction between formal or procedural truth and material or actual truth, construed by oldfashioned German doctrine to be the consequence of the discovery that the facts that were declared proven in judicial proceedings often did not coincide with the actual events [29]. The truth of the facts depends on the reality of said facts, which is completely independent of whether we are inside or outside of the judicial proceedings. Thus, truth in law is not only possible but necessary from the point of view of justice, and we should distinguish it from similar concepts that could lead to confusion, such as certainty [30] and plausibility. The former is highly subjective, as certainty is the particular – subjective – appraisal that an individual can make on specific events. In the context of evidence, we refer to the psychological conviction of the judge, which has nothing to do with empiric reality. So, Taruffo clarifies that truth “es objetiva y depende de la realidad de los hechos de los que se habla” [31], whereas certainty “es un estado subjetivo, referido a la psicología de quien habla, y corresponde a un grado elevado (o muy elevado cuando se habla de «certezas absolutas») de intensidad del convencimiento del sujeto” [32]. To the contrary, credibility covers two concepts: one as the appearance of truth and the other, as an equivalent of probability, neither of which can be equalled to truth.

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Consequently, it makes sense to refer to truth in the context of judicial proceedings; as truth, it should be remembered, that is relative, objective, reasonable, unique and as a correspondence. It also makes perfect sense insofar as legal proceedings without truth would not be just. In fact, they would be the opposite, that is, unjust. From this point of view, it would be perfectly reasonable to uphold, as Taruffo has aptly stressed, that “la verità non è importante: è inevitabile” [33], because “si no hay verdad en el contexto procesal, no hay Justicia, porque entonces estaríamos ante un juicio puramente arbitrario, no controlable. En otras palabras, un autoritarismo puro sin principio de legalidad” [34]. Thirdly, and lastly, if we sustain that it is possible to refer to truth in law and, therefore, in judicial proceedings, then we should study the role of truth in the legal context, to the point of considering it to be a validating criterion for a just judicial decision. To that end, we refer to the conditions or requirements that a judicial decision should meet to be considered just, following Professor Taruffo's theory of a just judicial decision. That is the only way to find out whether truth contributes to the justice of a decision and to what extent. In accordance with said theory, Taruffo is of the opinion that “la giustizia della decisione assume la forma di un algoritmo che ricomprende e collega tre ordini di valori. I tre criteri ai quali si allude sono i seguenti: a) correttezza della scelta e dell'interpretazione della regola giuridica applicabile al caso; b) accertamento attendibile dei fatti rilevanti del caso; c) impiego di un procedimento valido e giusto per giungere alla decisione” [35], de tal manera que se puede afirmar que “una decisione è giusta in senso proprio solo se è giusta sulla base di tutti e tre i criteri” [36]. In other words, a just judicial decision requires the concurrent existence of three conditions: a. the decision must be the result of just judicial proceedings; i.e. fully guaranteed from a material and formal viewpoint. b. the regulation used as a criterion for the decision must have been interpreted and implemented correctly. c. it must be based on a true determination of the facts. This perspective shows that the three elements or conditions must necessarily concur. On their own, none of them would be sufficient to ensure the justice of the decision, as “tampoco la justicia del proceso es suficiente para garantizar la justicia de la decisión, porque se requieren las otras dos condiciones” [37]. From a formal point of view, the proceedings must be duly conducted [38] with full guarantees. From a material point of view, the judge must determine the facts and ensure that they correspond to the empiric reality or truth of said facts. After that,

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the judge must apply the legal consequence of the regulation in question correctly. Consequently, the first essential step that a judge must take to issue a just ruling is to establish the true facts that gave rise to the legal dispute. In view of this, it could be asserted, in our opinion, that the truth serves to fix or determine the reality of the facts asserted by the parties and, hence, to apply to them the legal consequence stipulated in the regulation. Thus it can be deduced that the truth constitutes a valid criterion for the correct implementation of a legal norm that is appropriate for the case presented and, therefore, for the justice of the judicial decision. 3. THE RIGHT TO THE TRUTH AS A FUNDAMENTAL PROCEDURAL RIGHT Before studying the configuration of the right to the truth as a fundamental procedural right of the highest relevance in contemporary legal systems, we should refer to its consideration as a fundamental right – although with the particularities of its procedural nature – the better to describe how the right is structured. Therefore, if we follow the comprehensive notion of fundamental rights defended by Peces-Barba [39] in his general theory of rights, we should also defend the inexcusable presence in the fundamental procedural right of the three elements of which it is made: moral, legal and social. Firstly, the “justified moral aspiration” of the right must contain a moral or ethical element that has its roots in human dignity, in last instance, and can satisfy any demand or claim that seeks the legal consideration of a fundamental right. In this respect, Fernández García asserts that human dignity should be construed not only as “lo más valioso, lo que no tiene precio, lo que exige un respeto inmediato sino también como el derecho a tener derechos” [40], therefore “respetar la dignidad de los seres humanos equivale a reconocerles ciertos derechos” [41]. In our opinion, these include fundamental procedural rights, to constitute a relevant method of protecting human dignity, i.e. of the “condiciones inexcusables de una vida digna” [42]. Furthermore, these encompass the fundamental right of the truth of the facts, the moral aspect of which acquires singular importance because it will determine the justice of the judicial decision and, so, the reparation of the damage caused to the victim and the reinstatement of his or her dignity. At this point, in view of the greater vulnerability of the victims of terrorism, we should take a moment to consider the existence of a moral aspect of the rights, which, in turn, comprises three elements: the capacity to choose, individual autonomy and the fulfilment of life plans. The second of these – individual autonomy – should be viewed in relation to the satisfaction of basic needs, considering that the moral basis of fundamental rights implies the recognition of a

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series of human needs that the legal system considers essential to the development of a victim's personality and individual life plan. Individual autonomy includes the protection of an individual's liberty, which is a legitimate and unavoidable need that must be met. This is particularly true of individuals who have been forbidden the possibility of protecting their autonomy because legal systems have prohibited the self-protection of private interests. That is why States have a correlated duty to provide justice. With regard to what we should construe as basic needs, Añón Roig suggests an interesting and precise definition based on their unintentional nature, in accordance to which the basic human needs would be “aquellas situaciones o estados predicados de una persona y que tienen un carácter insoslayable para ella, que provocan un estado de sufrimiento, o grave daño para la persona. Este perjuicio o grave detrimento va a mantenerse exactamente en las mismas condiciones, salvo que esa situación se vea satisfecha, cumplida o realizada, no habiendo posibilidad alternativa de salir de ella o una situación que previsiblemente, en un futuro próximo o inmediato, pueda sustituir a la anterior” [43]. Thus, basic needs presuppose the existence of damage, which must be real, that is, based on true facts. They must take the shape of ineluctable requirements for a decent life and the integral development of the individual, which are the bedrock of political order and social peace. Secondly, there is the legal-regulatory element, because the “justified moral aspiration” must be developed into a rule of law for it to be a real right and not a mere statement of intent. In other words, it implies integrating the justified moral aspiration into legal rules and regulations based on the category of the fundamental right. As Ansuátegui Roig correctly points out – in relation to the current fundamental rights –, this results in “un subsistema dentro del sistema jurídico, el Derecho de los derechos fundamentales, lo que supone que la pretensión moral justificada sea técnicamente incorporable a una norma, que pueda obligar a unos destinatarios correlativos de las obligaciones jurídicas que se desprenden para que el derecho sea efectivo, que sea susceptible de garantía o protección judicial, y por supuesto que se pueda atribuir como derecho subjetivo, libertad, potestad o inmunidad a unos titulares concretos” [44]. Thirdly, and lastly, apart from the aforementioned constitutive elements of rights (which define a dualistic concept thereof) [45], a complementary but no less important element should also be taken into account. We are referring to the social element, without which a legal regulation that includes a “justified moral aspiration” would be not be truly effective. The social element is achieved by via the existence of a Power, represented at the institutional level by a judge. This third element of “efficacy” acquires special importance in fundamental procedural

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rights, because they are construed as the instrument for attaining the general effectiveness of the other rights [46]. Notwithstanding, its estimation as an external feature of law is inverted in the fundamental procedural rights, which are summarised in “effective legal protection”, for it would be redundant to refer to the effectiveness of effective legal protection. The result, as Peces-Barba contributes with his integral notion of rights, is that “la eficacia de la moralidad de los derechos fundamentales se realiza a través del Derecho. Las funciones que desempeñan los derechos no se logran con consejos o prédicas, ni con buenas intenciones; es necesario poner a su servicio al sistema normativo, apoyado en el aparato coactivo del Estado para aquellos que no consideren entre sus objetivos el respeto a los derechos” [47]. Nevertheless, as indicated in the preceding pages, the serious harm implied in a terrorist attack against the most highly valued legal rights of an individual, such as liberty, life and physical or mental integrity – in short, human dignity – requires an effective legal response that repairs the harm suffered by the victim, so “el primer paso para la salvaguarda de los intereses de la víctima en su anhelo de justicia se materializa en el acceso a la tutela judicial efectiva” [48]. This means opening judicial proceedings in which the events are reconstructed as closely to empirical reality as possible in order to apply the right legal norm, leading us to a judicial decision that not only resolves the legal conflict between the parties but does so in a manner that is just. In the words of Taruffo, “non ogni decisione è «buona» sol perchè pone fine al conflitto; la decisione è «buona» se pone fine al conflitto essendo fondata su criteri legali e razionali, tra i quali assume importanza particolare la veridicità dell’accertamento dei fatti” [49]. Consequently, we must consider the need to integrate one fundamental procedural right in particular into our legal systems: the “right to the truth”, as an indispensable fundamental right for arriving at a just judicial decision and, in short, for the formal and material effectiveness of the proceedings. This would be coherent with the expansive point of view that we advocate in the fundamental procedural rights of a constitutional State. To that end, as we have seen in the preceding section, we should refer, firstly, to the problem of the truth in law, based on the facts of day-to-day reality that the parties introduce into the proceedings in such a way that they constitute the grounds for the legal case, to which the judge must apply the appropriate legal norms. In other words, there is the importance of a proper interpretation of the facts (and not only of the legal norms) by the judge. The justice of the judicial decision will depend on that interpretation to a large extent, because it must necessarily be based on the truth of the facts.

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The relationship of the facts asserted by the parties to the proceedings with the truth – the importance of which has diminished recently, in our opinion – should be studied from several angles. We will focus on two: a. the “reductionist” conception, as a result of sustaining a traditional or standard concept of proceedings and limiting truth strictly to the proceedings as such – which is known as the formal truth – and, within that, to the right to bring evidence. Thus, it is conceived as a method to obtain the psychological conviction of the judge with regard to the facts asserted by the parties, regardless of their truth. The extension of this is the “judge's intimate conviction”, which is still used in many European procedural systems, including that of Spain, as a method for a free assessment of the evidence. In fact, we could assert that, in this case, the truth is displaced by certainty, in such a way that, following Taruffo, “en este contexto no importa si la decisión final se basa o no en una reconstrucción fidedigna de los hechos del caso” [50]. b. “protective” concept, an extension of modern proceedings, which leads us to assert the truth as a fundamental right of the parties that exceeds the limits of the proceedings, as such. Thus, it becomes an independent category in the evidentiary activity, in which the truth of the facts becomes a necessary and essential requirement – although not the only one – for obtaining a just judicial decision. This implies considering the evidence as a tool that is available to the judge to ascertain the truth of the facts. It is what Taruffo calls the demonstrative role that develops the evidence, in the sense that “la prova giudiziaria svolge una funzione dimostrativa in quanto fornisce un fondamento conoscitivo e razionale per la scelta che il giudice compie individuando una versione attendibile e veritiera dei fatti rilevanti della causa, e giustificando razionalmente tale scelta” [51]. That said, we uphold the existence of a “right to the truth” as a previous right that legitimises the other rights. It requires the judges' correlated duty to provide sufficient grounds in their decisions for the facts to be certified, because that is the only way to implement the law correctly. We should take into account the social and political value of the truth, because a covenant of truth with the citizenship is fundamental in any democratic system. It is not in vain that we are witnessing a growing social value of truth, as Taruffo says, one of whose manifestations is reflected in politics. Truth is an essential component of a democratic State as “para un Estado democrático siempre es incorrecto mentir a sus ciudadanos. Éstos, por otra parte, no estarán en condiciones de formarse opiniones correctas y de ejercer su derecho de crítica si están inmersos en un sistema basado en la mentira y el ocultamiento de la verdad” [52].

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Next, we will address the relationship between truth, evidence and proceedings, which must be based on an analysis of the purpose of civil proceedings in law. The answer to this question will provide a concept of evidence that will enable us to obtain the truth of the facts. Firstly, therefore, we must take into consideration the two existing conceptions of the proceedings: a. traditional or standard, derived from the prevailing liberal ideology in the 19th century, according to which proceedings were conceived of as a mere mechanism for solving a private conflict. We can observe this conception in civil adversary proceedings in the United States [53] and it is also widespread in current Spanish proceedings, despite the last Law of Civil Procedure of 2000. b. modern or protective, which emerged in Germany in the late 19th century as a result of the socialisation of civil proceedings [54], based on the idea of justice as a function of the State. The manner in which legal disputes were settled gained importance, because it required a just judicial ruling, in the aforementioned terms. Secondly, we should stress the legal relevance of the distinction between the two conceptions of proceedings, as a result of which we can refer to a judicial ruling as just or unjust. This is obvious in two fundamental aspects: 1º. With regard to the adoption of a function of specific evidence, because traditional proceedings use a rhetoric function of the evidence and modern proceedings advocate an epistemic function thereof. If the purpose of civil proceedings is limited to resolving a legal dispute between the parties – standard proceedings – then the quality of the judicial decision is irrelevant. The rational grounds of the occurrences will be indifferent and, therefore, so will the determination of the truth of the facts. Thus, the lawyers will attempt to use the evidence to “convince” the judge that their version of the facts is “true” – a rhetoric function –, regardless of whether the facts are true or not. In such cases, we are referring to certainty, not the truth. In our opinion, this manner of understanding evidence is lacking in logic and reason. By contrast, sustaining that the function of proceedings is for them to end in a just judicial decision – the protective function –, in accordance with the result of the proceedings, involves conceiving the evidence as a method of knowledge available to the parties and the judge to verify the truth of the facts – an epistemic function –, in which a judicial decision must contain rational grounds for the facts, based on the truth [55].

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2º. The role of judges in matters pertaining to the evidence in civil proceedings will be more active or more passive; that is, judges will enjoy greater or lesser probative initiative, depending on which function of the evidence we adopt. In the event that we uphold a rhetoric function of evidence, the lawyers will be the most important figures and the judges mere “arbiters” who attend the dispute between the parties passively, ensuring the proper development of the proceedings from a strictly technical or procedural viewpoint. This is the figure of the judge as a civil servant or bureaucrat. However, if we consider that the evidence fulfils an epistemic function, we grant judges more prominence, which means they must be guided by a search for the truth of the facts and ensure that their decisions are well grounded. To conclude, the role of truth in judicial proceedings implies assuming the protective or modern conception of civil proceedings, as an instrument for obtaining justice and not a mere mechanism for resolving a private dispute between the parties. Justice is based on the truth of the facts. This also implies defending an epistemic function of evidence, as a method of knowledge available to judges – and not only to the parties – in the search of truth. 4. CONCLUSIONS The victims of terrorism make up a particularly vulnerable group due to the serious attack against human dignity implied in violent crimes, which leave the victims in a state of great defencelessness. Contemporary legal systems must become increasingly aware of this in order to establish a legal standing for the victims, who deserve comprehensive and effective legal protection. The legal standing of the victims of terrorism must be formulated as a fundamental right of a procedural nature, which we call the “right to the truth of the facts”. In our opinion, the existence of said right is essential in a regulatory framework that protects the rights of victims, in accordance with the higher value of justice. Therefore, from a strictly procedural point of view, we could define the “right to the truth” as the right of the parties to know the truth of the facts in judicial proceedings and the judge's corresponding duty to direct the proceedings towards discovering the truth. In this sense, the special value that the truth holds for the victims of a terrorist attack cannot be ignored. For the victims, the criminal sanctions imposed on the perpetrators of the attack are not sufficient. They require reparation of the physical and mental harm they have endured; in other words, they want their dignity to be restored. To this we should add the growing social value of truth, one of whose manifestations is reflected in politics, because the truth is an essential component of a democratic State. Besides, the undoubted moral value of

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the truth should not be forgotten. Morality is particularly important in the vulnerable group of the victims of terrorism, insofar as respect for human dignity is one of the fundamental pillars of any legal system worthy of the name. In this respect, it should be remembered that, in a constitutional State of law, a judicial ruling on a dispute must be appropriate and just. That makes it absolutely necessary to determine the true facts of the case correctly, so the appropriate legal norm can be applied to them. Only then can we obtain a resolution that is not only satisfactory for the parties because it resolves the dispute, but also just. Hence, the right to the truth of the facts is intrinsically linked to the higher value of justice, which is effectively attained in judicial proceedings when the latter end in a just ruling. Moreover, judges become the main guarantors of the right, because their ruling must be based a reconstruction of the events that is as close to the actual facts as possible, and to which they must apply the appropriate legal norm. In brief, the truth of the facts is an unavoidable and indispensable requirement – although not the only one – of a just judicial decision. That is why it is essential for judges to make a correct interpretation of the facts, which they must indicate in the grounds for their decision. This implies that the truth plays a fundamental role in the legal sphere, in which we must follow, from an epistemological perspective, a realistic conception of truth that adopts the theory of truth as corresponding to the empirical or historical reality of the facts. So, it is a relative truth, with regard to human reality; objective, because it depends on the reality of the facts to which it refers and not of the opinion of the facts stated by the individual – which would be certainty –; reasonable, insofar as it occurs in a context of uncertainty – the proceedings –; and unique, because different types of truth do not exist. Consequently, the truth constitutes a valid criterion for the correct implementation of the appropriate legal norm to a specific case. That is why, in our opinion, the active intervention of judges in the search for the truth of the facts is justified. Their task should focus on reconstructing the facts as precisely or reliably as possible and be indicated in the grounds of the ruling issued. Only then will we be able to assert that justice has been served and the victims of terrorism will find one of the things humans treasure the most – their dignity – restored. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise.

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ACKNOWLEDGEMENTS Declared none. REFERENCES [1] Castañón Álvarez MJ. Víctimas del terrorismo: Protección y tutela. Granada: Estudios de Derecho Penal y Criminología. Granada: Comares 2013; Premisa Introductoria. [2] Castañón Álvarez MJ. cit., Premisa Introductoria. [3] Castañón Álvarez MJ. cit., p. 7. [4] In this respect, the concept of “victimal justice” mentioned by Beristain Ipiña is interesting, in our opinion. “Victimal justice” is construed as “una nueva e innovadora teoría y praxis que introduce radicales innovaciones en el Derecho Penal tradicional, que elabora una justicia reparadora que implica a las personas relacionadas con la comisión de una infracción de la ley penal (victimación), con el fin de conocer y responder colectivamente a las víctimas y a los autores de la infracción, sin recurrir a la sanción vindicativa y creando en su lugar la reparación de los daños causados y la dignificación de todas las víctimas” (Beristain Ipiña A. Víctimas del terrorismo. Nueva justicia, sanción y ética. Valencia: Tirant lo Blanch 2007; p. 99). [5] Muñoz Escandell I. Los derechos de las víctimas del terrorismo en el ámbito internacional. Madrid: Dykinson 2012; p. 95. [6] Muñoz Escandell I. cit., p. 92. [7] VVAA. Democracia, nacionalismo y terrorismo en el País Vasco. Vitoria: Ciudadanía y Libertad 2010; p. 143. [8] See O’Callaghan Muñoz X. Compendio de Derecho Civil. Tomo II. Derecho de obligaciones. Madrid: Centro de Estudios Ramón Areces 2012. [9] Muñoz Escandell I. cit., pp.113-114. [10] Muñoz Escandell I. cit., p. 92. [11] Muñoz Escandell I. cit., p. 96. [12] In this respect, at the international level, see the Study on the right to the truth (2006) of the UN High Commissioner for Human Rights. [13] Newman-Pont V. Falso o verdadero (¿El derecho a la verdad es norma imperativa internacional?). Internacional Law 2009; (14):18. [14] Fajardo Arturo LA. Elementos estructurales del derecho a la verdad. Civilizar Ciencias Sociales y Humanas 2012; 22: 19-20. [15] Fajardo Arturo LA. cit., p.16. [16] Gascón Abellán M. Los hechos en el Derecho. Bases argumentales de la prueba. Madrid: Marcial Pons 1999; p. 192. [17] See Del Real Alcalá JA. La indeterminación de la “estructura del deber” de los jueces en el Estado de Derecho. Anuario de Filosofía del Derecho 2006; 23: 242-265. [18] Taruffo M. ¿Verdad negociada? Revista de Derecho 2008 21(1): 134.

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[19] As Taruffo makes clear, over the past ten years we have witnessed a current known as veriphobia, or the culture of non-truth, which is fairly widespread among jurists, especially procedural jurists, which is based on “tutti quegli atteggiamenti che, in maniere più o meno aperte e consapevoli, sono contrari a qualunque discorso che riconosca significato e valore alla verità, e quindi ne negano di volta in volta l'esistenza, la possibilità, l'opportunità di ricercarla, l'eventualità di scoprirla in qualsivoglia contesto” (Taruffo M. La verità nel processo. Rivista Trimestrale di Diritto e Procedura Civile, 2012 (4): 1118). [20] Taruffo M. Verdad y probabilidad en la prueba de los hechos. Páginas sobre justicia civil (traducción de Maximiliano Aramburu), Madrid: Marcial Pons; 2009, p.418. [21] Taruffo M. cit., p.418. [22] Taruffo M. Simplemente la verdad. El juez y la construcción de los hechos. Transl. by Accatino Scaglioti D. Madrid: Marcial Pons 2010; pp. 112-113. [23] Taruffo M. La verità nel processo, cit., p.1119. [24] Taruffo M. cit., p.1119. [25] Taruffo M. Simplemente la verdad. El juez y la construcción de los hechos. cit., p. 95. [26] Taruffo M. Proceso y decisión. Lecciones mexicanas de Derecho Procesal. Madrid: Marcial Pons 2012; p. 44. [27] To summarise, Franca D'Agostini classifies the theories into robust theories and non-robust theories. It the former she includes the theories of correspondence, coherence and pragmatics; in the latter she includes the theories of truthmakers and semantics (See D’Agostini F. Introduzione alla verità. Torino: Bollati Boringhieri Editore 2011). Susan Haack also carries out a very interesting study on these theories in Haack S. Filosofía de las lógicas. Trans. by Antón A. Madrid: Ediciones Cátedra 1991. [28] Taruffo M. Consideraciones sobre la prueba y la motivación. Páginas sobre justicia civil. cit., 532. [29] Vid. Ferrer Beltrán J, Gascón Abellán M, González Lagear M, Taruffo M. Estudios sobre la prueba, México DF: Instituto de Investigaciones Jurídicas-UNAM 2006; pp. 31-32. [30] With regard to the notion of certainty in law, cfr. Del Real Alcalá, JA. Desacuerdos en la teoría jurídica sobre el concepto de certeza en el Derecho. Boletín Mexicano de Derecho Comparado 2006; 39(117): 755-775. [31] Taruffo M. Simplemente la verdad. El juez y la construcción de los hechos. cit., p. 102. [32] Taruffo M. cit., p. 102. [33] Taruffo M. La verità nel processo. cit., 1122. [34] Taruffo M. El juez imparcial es el juez que persigue la verdad. Diario La Ley 2012; 33(7887): 2. [35] Taruffo M. Idee per una teoria della decisione giusta. Rivista Trimestrale di diritto e procedura civile 1997; 2: 317. [36] Taruffo M. cit., p. 319. [37] Taruffo M. Cinco lecciones mexicanas: Memoria del Taller de Derecho Procesal. México: Tribunal Electoral del Poder Judicial de la Federación, Escuela Judicial Electoral 2003; p. 118. [38] Taruffo points out that an additional concept of duly conducted proceedings has emerged in recent years, which involves the procedural guarantees of the parties. However, it focuses on the functional connection between the judicial proceedings and the decision, according to which “se tiene un proceso justo cuando el procedimiento está estructurado de manera que se orienta hacia la obtención de decisiones justas” (Taruffo M. Determinación de los hechos y contradictorio en la tutela sumaria. Páginas sobre justicia civil; p. 270).

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[39] Cfr. Peces-Barba G. Lecciones de Derechos Fundamentales. Madrid: Dykinson 2005. [40] Fernández García E. Dignidad humana y ciudadanía cosmopolita. Madrid: Instituto de Derechos Humanos Bartolomé de las Casas-Universidad Carlos III and Dykinson 2001; p. 13. [41] Fernández García E. Dignidad humana y ciudadanía cosmopolita. cit., p.13. [42] Fernández García E. cit., p.20. [43] Añón Roig MJ. Necesidades y derechos. Un ensayo de fundamentación. Madrid: Centro de Estudios Constitucionales; 1994; p. 287. [44] Ansuátegui Roig FJ. Poder, Ordenamiento jurídico, derechos. Madrid: Instituto de Derechos Humanos Bartolomé de las Casas-Universidad Carlos III and Dykinson 1997; p. 20. [45] Cfr. Asís Roig R de. Sobre el concepto y el fundamento de los derechos: una aproximación dualista. Madrid: Instituto de Derechos Humanos Bartolomé de las Casas-Universidad Carlos III de Madrid and Dykinson 2001. [46] See López García JA, Del Real Alcalá JA. Los derechos, entre la ética el poder y el Derecho, Madrid: Dykinson 2000. [47] PECES-BARBA G. Lecciones de Derechos Fundamentales. cit., p. 38-39. [48] Muñoz Escandell I. cit., p. 115. [49] Taruffo M. Poteri probatori delle parti e del giudice in Europa. Rivista trimestrale di diritto e procedura civile 2006; 60(2): 475. [50] Taruffo M. Investigación judicial y producción de prueba por las partes. Revista de Derecho 2003; 15(0): 206. [51] Taruffo M. Funzione della prova: la funzione dimostrativa. Rivista Trimestrale di Diritto e Procedura Civile 1997; 3: 573. [52] Taruffo M. Simplemente la verdad. El juez y la construcción de los hechos. cit., pp. 112-113. [53] In this sense, Damaska draws attention to that “el modelo procesal “adversarial” surge a partir de una contienda o disputa: se desarrolla como el compromiso de dos adversarios ante un juez relativamente pasivo, cuyo deber primordial es dictar un veredicto. El modo no-adversarial está estructurado como investigación oficial. Bajo el primer sistema los dos adversarios se hacen cargo de la acción judicial; bajo el segundo, la mayor parte de las acciones son llevadas a cabo por los funcionarios encargados de administrar justicia” (Damaska MR. Las caras de la justicia y el poder del Estado: análisis comparado del proceso legal. Chile: Editorial jurídica 2000; p. 13). [54] This, as Picó i Junoy indicates, “pone de manifiesto la distinción entre objeto del proceso y proceso como instrumento idóneo para alcanzar la efectiva y real tutela, por parte del Estado, de los intereses litigiosos” (Picó i Junoy J. El derecho a la prueba en el proceso civil. Barcelona: Bosch Editor 1996; pp. 219-220). [55] See Taruffo M, Andrés Ibáñez P, Candau Pérez A. Consideraciones sobre la prueba judicial. AutorEditor 2009.

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CHAPTER 10

Psychopathological Consequences of Terrorism: The Prevalence of Post-Traumatic Stress Disorder in Victims of Terrorist Attacks María Paz García-Vera* and Jesús Sanz Department of Personality, Assessment and Clinical Psychology, Complutense University of Madrid, Spain Abstract: This chapter is aimed at reviewing post-traumatic stress disorder (PTSD) after terrorist attacks. The data and results of a meta-analysis by DiMaggio and Galea [1] were reviewed and its conclusions were qualified, upgraded and extended with the results from new studies and new analyses. After terrorist attacks, 18-40% of direct victims will develop PTSD, whereas the percentage of indirect victims with PTSD will be lower, but nonetheless above its habitual prevalence in the general population. At one year of terrorist attacks, a significant reduction of PTSD can be expected in the affected community and in the emergency and rescue personnel, but not in the injured victims and in the friends and relatives of the injured and mortal victims. The implications of these results for the psychological treatment of terrorism victims are discussed.

Keywords: Mental health, Narrative literature review, Post-traumatic stress disorder, Terrorism, Victims. 1. INTRODUCTION In the period between 2005 and 2013, a mean of 11,233 terrorist attacks occurred worldwide per year, which involved a mean of 16,013 deaths, 31,646 injured victims, and 9,661 kidnappings each year [2]. These data alone justify the fact that, in the recent years, terrorism has become one of the most severe and concerning problems worldwide, and that systematic research programs about its psychopathological consequences need to be further developed. Despite the fact that, for some time, the psychopathological consequences of terrorist attacks have been pointed out in the psychiatric and psychological Corresponding author María Paz García-Vera: Department of Personality, Assessment and Clinical Psychology, Complutense University of Madrid, Campus of Somosaguas, Madrid, Spain; Tel: +34 91 394 31 24; Fax: +34 91 394 31 89; E-mail: [email protected]

*

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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literature [3], until almost 15 years ago, no systematic investigation programs of this issue was developed. In fact, the September 11th, 2001, attacks in New York and Washington DC marked an inflection point in research on the psychopathological repercussions of terrorist attacks, with a dramatic increase in the number of scientific publications on the topic. Thus, a search in PsycINFO bibliographic database with the combination of terms of “terrorist attack” and (“posttraumatic stress” or “depression” or “anxiety” or “panic”) for the period from 1990 to 2001 identified only 18 publications (with a range between 0 and 5 publications per year), whereas a similar search for the period from 2002 to 2012 identified 593 publications (with a range between 26 and 97 publications per year). Furthermore, those searches found only 1 and 5 publications in 2000 and 2001, respectively, but they revealed 50 publications both in 2002 and 2003. Although all these publications do not deal with the September 11th, 2001, attacks, most of them do. Moreover, the most solid information we have about the mental health problems derived from terrorist attacks is practically limited to that obtained after investigating a very small number of attacks. Specifically, the attacks carried out in developed countries and, particularly, those that occurred in the past 20 years in the USA, Israel, and Western Europe (Spain, France, Ireland, and the United Kingdom) and which caused a large number of deaths and injuries, such as, for example, the attack of April 19th, 1995, in Oklahoma, the attack of August 15th, 1998, in Omagh (Northern Ireland), the attacks of March 11th, 2004, in Madrid, the attacks of July 7th, 2005, in London, and, of course, the attacks of September 11th, 2001, in New York and Washington DC. The studies of these attacks constitute the most solid compendium of empirical knowledge currently available on mental health problems provoked by terrorism. However, the above-mentioned terrorist attacks only represent a small portion of the dramatic problem of terrorism, even if only attacks with a large number of mortal victims are considered. From 2005 to 2013 alone there were 2,201 worldwide terrorist attacks that caused 10 or more deaths, of which only 26 occurred in Europe (one in the UK, one in Norway, 14 in Russia, and another 10 in Turkey) and only one in North America [2]. Therefore, research of the psychopathological consequences of terrorism is biased towards the massive terrorist attacks that have occurred in developed countries, and presents a priori problems for generalization of its findings to terrorist acts that occur in developing countries and that, at a worldwide level, represent the most important percentage of this extremely severe problem. Bearing this limitation in mind, in the recent years, such research has grown rapidly and fruitfully. Thus, although at the beginning of this century, a large part of our knowledge about the mental disorders caused by terrorism came from more extensive scientific literature on traumatic events (i.e., rape, physical or sexual

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abuse, car accidents, robbery with violence), including that dedicated to all kinds of disasters (i.e., wars, severe train, plane, or boat accidents, flash floods, fires, earthquakes), currently the body of empirical knowledge about mental health problems specifically derived from terrorism has allowed some meta-analytic and narrative reviews, for example, that of DiMaggio and Galea [1] on post-traumatic stress disorder (PTSD), that of DiMaggio, Galea, and Li [4] on substance dependence and consumption disorders, that of García-Vera and Sanz [5] on depressive and anxiety disorders, or that of Salguero, Fernández-Berrocal, Iruarrizaga, Cano-Vindel, and Galea [6] on major depressive disorder. The goal of this chapter is to selectively review the empirical studies on the prevalence of PTSD in adults resulting from terrorist attacks, with the conviction that any strategy or plan to attend to the mental health of the victims of terrorist attacks must estimate the number of people affected. The review will analyze the results of the meta-analytic study of DiMaggio and Galea [1], and will qualify and complete its conclusions with the results of other studies of PTSD not included in this meta-analysis. Likewise, DiMaggio and Galea’s meta-analysis [1] will be expanded to include empirical literature on the presence of PTSD in other groups of indirect victims not contemplated in it. The psychopathological repercussions of terrorist attacks go beyond the people who have experienced the attack directly and who have survived it without harm or with varying degrees of injuries. The indirect victims must be added to these direct victims: friends and relatives of the dead and injured, emergency professionals (medical and nursing personnel, ambulance drivers, psychologists, firemen, police force, etc.), and volunteers who intervened to help the victims, the people living near ground zero, and the general population of the affected community, which is the target of the terrorist actions [7–10]. The present review will examine PTSD in all these kinds of victims. The focus is mainly on the presence of diagnosable psychological disorders, rather than on the mere presence of psychological symptoms, because the latter, with no appropriate appraisal of their severity, frequency, covariation, and degree of interference, may only represent intense emotional responses that are a part of people's normal recovery process when faced with a traumatic event [11, 12]. 2. POST-TRAUMATIC TERRORIST ATTACKS

STRESS

DISORDER

DERIVED

FROM

In the days following a terrorist attack, many of its direct and indirect victims will experience symptoms of stress that can be grouped into four categories: 1. Persistent re-experiencing of the attack: the person recurrently experiences unpleasant memories or dreams in which the attack occurs all over again, flashback episodes (states during which the person feels as if the traumatic

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event were reoccurring and behaves as though experiencing the event at that moment), or intense physical or emotional responses to stimuli that recall or symbolize the attack. 2. Avoidance of stimuli associated with the attack: the individual makes deliberate and persistent efforts to avoid thoughts, feelings, or conversations about the terrorist attack, and to avoid any activities, situations, or people that could arouse recollection of the attack, in some cases, manifesting total amnesia about a certain aspect of the event. 3. Numbing of the individual's responsiveness: the person may present depersonalization symptoms (a feeling of detachment from one's own body or mental processes, as if one were an external observer or as if one were dreaming), or derealization (the external world is perceived or experienced as strange and unreal, for example, people may seem like strangers or like mechanical figures), markedly diminished interest or participation in previously enjoyed activities, a feeling of detachment or estrangement from others, marked decrease in the ability to feel emotions (especially those associated with intimacy, tenderness, and sexuality), or a feeling of future hopelessness. 4. Increase of arousal or anxiety: sleep disturbances (difficulty falling or remaining asleep) may appear, as well as hypervigilance, exaggerated startle responses, irritability or anger attacks, or difficulties in concentrating or completing tasks. In most of these people, these symptoms will be of mild or moderate intensity, and the natural psychological mechanisms of recovery will allow the individuals to overcome them with varying difficulty. However, in a significant percentage of the direct and indirect victims of the attacks, the symptoms of stress are of such intensity and persistence that they cause clinically significant distress or impairment in social, occupational, or other important areas of the individual's activities, so that ―following the diagnostic criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition― in these patients, the diagnosis of an acute stress disorder (if the symptoms last for a minimum of 2 days and a maximum of 4 weeks) or a post-traumatic stress disorder or PTSD (if the symptoms last for more than one month) should be considered. In 2006, DiMaggio and Galea performed a meta-analytic review in which they analyzed the results of 61 studies published up to 2004 that had estimated the prevalence of PTSD derived from terrorist attacks using either diagnostic criteria based on the DSM or validated screening instruments [1]. A selection of the main results of this meta-analysis are shown in Tables 1 and 2, to which the data of various studies published after 2004 are also presented. These latter data allow us to qualify the conclusions that can be reached from the review of DiMaggio and Galea [1], revealing the limitations that affect the meta-analytic technique as a

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research tool. These limitations, which DiMaggio and Galea acknowledge, have to do mainly with the possibility of an excessive dependence on meta-analytic summary statistics that can conceal the existence of systematic variations among the studies or can lead to erroneous conclusions because of combining studies that are so heterogeneous that such a combination is at issue. The first conclusion that can be reached from DiMaggio and Galea's review [1] is that, after a terrorist attack, there is a significant percentage of people affected by PTSD among the victims, both direct and indirect, a percentage that ranges between the estimated mean of 18% in samples of people directly exposed to the attack who have survived, and the mean of 10.9%, calculated in samples of the general population of the affected community (see Table 1). In fact, even the studies in Table 1 that reported lower percentages of people affected by PTSD present figures of PTSD that exceed the habitual one-year prevalence in the reference population. Thus, for example, both the studies of Vázquez et al. [12] and Miguel-Tobal, Cano Vindel, Iruarrizaga, González Ordi and Galea [13], which found approximately 2% of people with PTSD derived from the M-11 attacks in the general population of Madrid, and the studies of Miguel-Tobal et al. [13] and Gabriel, Ferrando, Sainz Cortón et al. [14], which, after the same attacks, found little more than 1% of people with PTSD among the emergency personnel, present figures that exceed the one-year prevalence of PTSD in the Spanish population, which is estimated to be approximately 0.5% from a study carried out before the M-11 attacks, between 2001 and 2002 [15]. Table 1. Prevalence of post-traumatic stress disorder (PTSD) derived from terrorist attacks as a function of degree of exposure to the attacks (general population; survivors; emergency, rescue, assistance or recovery personnel; friends and relatives of the victims injured or killed).

Reference

Terrorist Attack / Sample

Moment of Assessment after the Attack

Measures

Prevalence of PTSD

General population [1]

Meta-analysis of 10 studies of various Variable terrorist attacks

Explicit diagnostic criteria based on the Diagnostic and Statistical Manual of Mental Disorders (DSM) and/or other validated screening instruments of PTSD

10.9%

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(Table 1) contd.....

Reference

Moment of Assessment after the Attack

Terrorist Attack / Sample

Measures

Prevalence of PTSD

General population [17]

New York, 9-11 / 11.037 adults from the affected area of New York

2-3 years

DSM-IV diagnostic 12.6% criteria based on the PCL-C + cut-off point of the PCL-C

[14]

Madrid, M-11 / 485 adults from Alcalá de Henares (Madrid)

5-12 weeks

DTS

[16]

Israel, 2000-2002 / 512 adults from 19 months after DSM-IV symptomatic 9.6% Israel (28.1% direct victims/witnesses) the first attack criteria based on the SASRQ

[16]

Israel, 2000-2004 / 501 adults from 44 months after DSM-IV symptomatic 8.8% Israel (20.1% direct victims/witnesses) the first attack criteria based on the SASRQ

[18]

Madrid, M-11 / 1,589 adults from Madrid

1-3 months

Interview based on the 2.3% NWS

[19]

New York, 9-11 / 2,001 adults from New York

4 months

Interview based on the 7.4% NWS

[20]

Israel, 2000-2001 / 167 adults from a directly affected suburb of Jerusalem and 89 from an indirectly affected suburb

8-10 months after the first attack

DSM-IV criteria based on the PSS + dysfunctional distress assessed by the BSI + functional impairment assessed by four 5point-items

- 9.6% (directly affected suburb) - 6.7% (indirectly affected suburb)

[21]

Israel, March 2002 / 295 adults from the affected areas

1 month

IES-R-B

5.1%

[12]

Madrid M-11 / 309 adults and 194 university students from Madrid

18-25 days

DSM-IV criteria based 1.9% on the PCL-C + four 10-point rating items that assess the A2 and F diagnostic criteria of the DSM-IV

12.3%

Survivors [1]

Meta-analysis of 8 studies of various terrorist attacks

Variable

Explicit diagnostic criteria based on the DSM and/or other validated screening instruments of PTSD

18.0%

[14, 22]

Madrid, M-11 / 56 injured survivors

1 month

- DTS - MINI

- 41.1% - 35.7%

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(Table 1) contd.....

Reference

Terrorist Attack / Sample

Moment of Assessment after the Attack

Measures

Prevalence of PTSD

General population Madrid, M-11 / 127 injured survivors

5-12 weeks

DTS

44.1%

[23]

Haifa (Israel), bomb on a bus in Spring of 2003 / 31 direct victims

6 months

SCID

61.3%

[24]

Israel, 2003 / 50 uninjured or slightly wounded survivors

4 months

Solomon's PTSD Inventory

24%

[25]

Israel, 2000-2002 / 39 injured survivors

4 months

CAPS

35.9%

Emergency, rescue, assistance, or recovery professionals or volunteers [8]

Oklahoma City, April19, 1995 / 176 firemen

15-41 months (mean = 34 months)

DIS

[26]

New York, 9-11- / 1,138 rescue and recovery workers and volunteers

10-15 months

- PCL-C cut-off point - 19.7% - PCL-C cut-off point - 15.3% + DSM-IV diagnostic criteria

[14]

Madrid, 11-M /153 police force

5-12 weeks

DTS

[13]

Madrid, M-11 /165 emergency-rescue 1-3 months professionals-volunteers

Interview based on the 1.2% NWS

[27]

New York, 9-11 / - 3,925 police force - 3,232 firemen - 1,741 medical personnel - 1,741 clear-up and construction workers - 1,798 clean-up workers - 5,438 volunteers from organizations - 3,797 volunteers without affiliation - 4,263 workers from other government agencies

DSM-IV diagnostic criteria based on the PCL-C + cut-off point of the PCL-C

- 6.2% - 12.2% - 11.6% - 17.8% - 10.6% - 7.2% - 21.2% - 11.8%

[28]

New York, 9-11- / 10,132 rescue, 10-61 months recovery, and clean-up workers or volunteers (5% were also relatives of mortal victims; 36% were also friends of mortal victims)

PCL-C

11.1%

[10]

New York, 9-11 / 109 mental health workers

CAPS

4.6%-6.4% (at 3 months) 0% (at 6-8 months)

2-3 years

6-8 months

Friends and relatives of mortal victims or injured victims

13.0%

1.3%

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(Table 1) contd.....

Reference

Terrorist Attack / Sample

Moment of Assessment after the Attack

Measures

Prevalence of PTSD

General population [22]

Madrid M-11 / 47 friends-relatives of injured victims

1 month

DTS

34.0%

[23]

Haifa (Israel), bomb on bus in Spring of 2003/ 50 friends-relatives of direct victims

6 months

SCID

20.0%

[13]

Madrid, M-11 / 110 friends-relatives 1-3 months Interview based on the 28.2% of injured /mortal victims + 7 injured NWS survivors Note. BSI = Brief Symptom Inventory. CAPS = Clinician-Administered PTSD Scale. DIS = Diagnostic Interview Schedule of the National Institute of Mental Health. DTS = Davidson Trauma Scale. IES-R-B = Impact of Event Scale, Revised Version, Brief. MINI = Mini International Neuropsychiatric Interview. NWS = TEPT module of the National Women Study. PCL-C = Post-traumatic Stress Disorder Checklist-Civilian version. PSS = Post-traumatic Symptom Scale. SASRQ = Stanford Acute Stress Reaction Questionnaire. SCID = Structured Clinical Interview for Axis I DSM-IV Disorders.

Nevertheless, the increase in the prevalence of PTSD caused by the experience of a terrorist attack should not conceal a second conclusion that can be reached from the empirical literature if, for example, the complementary percentages of the prevalence of PTSD that appear in Table 1 are calculated. This second conclusion is that the great majority of the direct and indirect victims of terrorist attacks do not develop PTSD and manage to recover normally without significant psychopathological sequelae. The conclusion is offered even when such attacks are characterized by a high number of dead and injured, and very important material destruction, such as in the 9-11 attacks of New York, or by their continuous repetition over time, as in Israel between September 2000 and May 2004, an interval during which about 13,000 attacks were counted [16]. The conclusion has important implications because, on the one hand, it justifies the need to study the victims' factors and normal psychological recovery processes and, on the other, it clears new pathways to improve current psychological treatments for the victims of terrorist attacks and to design new treatments to promote such factors and processes, and to enhance people's resilience and capacity to adapt. 3. POST-TRAUMATIC STRESS DISORDER EXPOSURE TO TERRORIST ATTACKS

AND

DEGREE

OF

As can be expected, the empirical literature also confirms that the psychopathological consequences of terrorist attacks are directly related to people's degree of exposure to them, although some aspects of that relation could

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be qualified. From DiMaggio and Galea's meta-analysis [1], it could be concluded that the presence of PTSD derived from terrorist attacks is more frequent in survivors than in emergency personnel and rescuers, and much lower in the general population (18, 16.8, and 10.9%, respectively). However, the results of more recent studies not included in DiMaggio and Galea’s meta-analysis raise some issues and qualify those conclusions. First, after analyzing the results of eight studies, DiMaggio and Galea suggested that there was an 18% of prevalence of PTSD among the survivors (see Table 1). However, when calculating the mean percentage (weighted by sample size) of five studies of survivors published after this meta-analysis (see Table 1), the prevalence of PTSD among survivors is 39.9%. Consequently, the most prudent conclusion with the current data is that, in this latter collective, the frequency of PTSD could be estimated as being between 18-40%. Second, there are more recent studies carried out with professionals, workers, and volunteers from the emergency, assistance, recovery and rescue systems, and those studies challenge and qualify the conclusion that all these collectives present more PTSD than the general population of the community affected by the attacks. The reality may be just the opposite because, although it is true that because of the characteristics of their task, emergency, assistance, recovery and rescue personnel are overexposed to the more brutal and horrible effects of the attacks in comparison to people from the general population, these professional groups, or at least some of them, may also be less vulnerable to PTSD, among other factors, due to the selection and self-selection processes in order to work in traumatic settings, their preparation and experience in routine tasks of aiding the injured and recovering the dead, and their having learned skills to maintain mental health in traumatic situations as part of their regular and unregulated training processes. Given that, with regard to emergency, assistance, recovery and rescue personnel, the results of DiMaggio and Galea are based on only two studies, one of the 9-11 attacks [26] and the other of the Oklahoma City bombing [8], the specific results of these two studies, together with other more recent studies, were included in Table 1. After calculating the mean percentage of people with PTSD, weighted by sample size of the corresponding study, the results of the 8 studies shown in Table 1 suggest that approximately 12% of the professionals and volunteers of the emergency, assistance, rescue and recovery services will suffer from PTSD following a terrorist attack (12.2% considering the highest percentages that appear in Table 1 when reporting various percentages in the same study for the same collective). This mean prevalence of 12% of PTSD is still higher than the one calculated by DiMaggio and Galea for the general population of the affected community (10.9%), but the difference is only approximately one percentage

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point. In fact, a detailed analysis of the percentages in Table 1 by types of collectives (police force, firemen, emergency health personnel, clearing, cleaning, and construction workers) suggests that the prevalence of PTSD after terrorist attacks is not homogeneous in all these collectives and some of them (i.e., emergency personnel: police force, firemen, health personnel) could present specifically lower prevalences of PTSD than others (i.e., recovery workers: clearing, cleaning, and construction workers). In this vein, two studies carried out with professionals and volunteers of the emergency and assistance services (police force, firemen, doctors, nurses, psychologists) who attended to the M-11 victims coincide in that only about 1.21.3% of these people displayed PTSD [13, 14] (see Table 1), figures that are not only lower than those provided by DiMaggio and Galea [1] for the general population (10.9%), but also slightly lower than those found in the general population of Madrid after M-11 (1.9-2.3%; see Table 1), despite the fact that they are higher than the habitual one-year prevalence of PTSD in the general Spanish population before the M-11 attacks (0.5%) [15]. Therefore, in addition to considering the heterogeneity of the collectives that work in assistance, recovery, and rescue tasks following a terrorist attack, other factors should be taken into account to understand their psychopathological repercussions in these professional and volunteer groups, factors that, in fact, could explain the discrepancy between the results of some of the studies presented in Table 1, such as the lower figures of PTSD in the studies of M-11 versus the studies of 9-11 or the Oklahoma City bombing. Thus, the discrepancy could be due to the characteristics of the attacks because, for example, there was a higher level of material destruction, injured victims, and loss of human lives in the 9-11 attacks than in the M-11 attacks. In fact, in the 9-11 attacks there were also a very high number of deaths among the emergency and rescue personnel. Another factor to be taken into account is the different level of exposure to the traumatic situation in the same collective. For example, the rescue work went on for a longer interval in the 9-11 and Oklahoma City attacks than in the M-11 attacks, and at least one study has found a positive relation between the number of days working in rescue tasks and the presence of PTSD [8]. Third, in the review of DiMaggio and Galea [1], data from another important group of indirect victims of terrorism are missing: the friends and relatives of the dead and injured in the attacks. In fact, the scientific literature on the psychopathological consequences of terrorist attacks has, in general, paid little attention to the people who lose their loved ones in such attacks. In Table 1 are presented three studies carried out with this population, two after the M-11 attacks and one after an attack in Haifa (Israel). After calculating the mean percentage of

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people with PTSD, weighting for sample size of the corresponding study, it can be estimated that between 1 and 6 months after an attack, PTSD could affect approximately 27.6% of the friends and relatives of the injured or dead in the attack, which places this group of indirect victims, with regard to the prevalence of PTSD derived from attacks, much higher than the general population of the affected community (10.9%) or than the emergency and rescue personnel (12%), and at similar levels as the survivors or direct victims (18-40%). In fact, the group of people who suffer the traumatic loss of a loved one in a terrorist attack deserves special consideration because other psychopathological problems, such as major depression disorder or complicated bereavement and the comorbidity of the latter with PTSD, are frequently present in this group. For example, in a sample of 70 people who had received individual psychological counseling through the free program Project Liberty after the 9-11 attacks and who reported knowing someone who had died in the attacks, it was found that approximately a year and a half after the attacks, 18.5% simultaneously presented PTSD, major depressive disorder, and complicated bereavement, another 8.6% displayed PTSD and major depressive disorder, 5.7% had PTSD and complicated bereavement, and lastly, another 5.7% presented only PTSD [29]. 4. POST-TRAUMATIC STRESS DISORDER AND THE PASSING OF TIME AFTER TERRORIST ATTACKS A last conclusion about the prevalence of PTSD that could be reached from the empirical literature is that, with the passing of time there is a significant decrease in the number of people affected by PTSD. Thus, according to the meta-analytical data of DiMaggio and Galea [1] based on 18 studies, most of them crosssectional, two months after the attacks, an average prevalence of approximately 16% is observed among the direct and indirect victims, a prevalence that significantly decreased to 14% at 6 months, and to approximately 12% at one year (see Table 2). This means that, in the course of one year, the prevalence of PTSD among the victims reduced by about 25%. Table 2. Prevalence of post-traumatic stress disorder (PTSD) derived from terrorist attacks as a function of time passed since the attack. Prevalence of PTSD Reference Terrorist Attack / Sample

1-3 Months 6-9 Months

12 Months 12.3%

[1]

Meta-analysis of 18 studies of various terrorist attacks and samples (survivors, emergency-rescue personnel, general population)

15.9%

14.2%

[18, 32]

Madrid, M-11 / General population of Madrid

2.3%

0.4%

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(Table 2) contd.....

Prevalence of PTSD Reference Terrorist Attack / Sample

1-3 Months 6-9 Months

[13, 18, 33] Madrid, M-11 / Friends-relatives of injured/dead victims

28.2%

15.4%

[22]

Madrid, M-11 / Friends-relatives of injured/dead victims

34%

31.3%

[34]

Madrid, M-11 / Injured survivors

35.7%

34.1%

[13, 18]

Madrid, M-11 / Emergency-rescue professionalsvolunteers

1.2%

0%

12 Months

28.6%

Again, we could confirm or qualify this conclusion taking into account the type of victims, that is, their degree of exposure to the attacks, and analyzing the results of longitudinal studies that allow us to better appraise the course of PTSD. In Table 2 are presented some of these studies on victims of the M-11 attacks. In the same vein as the results of DiMaggio and Galea [1], at 6-9 months of M-11, both in the general population and in emergency and assistance personnel, an important reduction in the frequency of PTSD was found (from 2.3 to 0.4%, and of 1.2 to 0%, respectively), so that 6 to 9 months after the attacks, the percentage of people affected by PTSD in these two groups of indirect victims was similar to the annual prevalence of this disorder in the Spanish population before the M-11 attacks (0.5%) [15]. However, among the friends and relatives of the mortal victims or the injured in the M-11 attacks, the results are contradictory (see Table 2). In one study, a reduction in the frequency of PTSD was confirmed (from 28.2 to 15.4%), whereas in another study, no significant reduction in the frequency of PTSD was observed 6 to 9 months after the attacks (from 34 to 31.3%). With regard to the direct victims of the M-11 attacks, specifically the injured victims, the only longitudinal study published to date did not find any important short-term reduction of PTSD with the passing of time; in fact, the percentage of injured people who suffered from this disorder 6 months after the M-11 attacks (34.1%) was practically the same as the percentage who suffered it 1 month after the attacks (35.7%). Only at 1 year was a significant reduction observed in the prevalence of PTSD, which was around 29% (a 20% reduction). Nevertheless, despite such reductions, both in the direct victims and in the friends and relatives of the direct victims who were injured or killed, the prevalence of PTSD at 6 to 9 months or 1 year after the attacks is still much higher than the habitual numbers in the general Spanish population. Summing up, after a terrorist attack, with the passing of time, a significant reduction can be expected in the number of people affected by PTSD; however,

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this reduction is not the same in all types of victims nor does it follow the same course; the reduction is more obvious in people from the general population of the affected community and in the emergency and rescue personnel, and it is relatively less or slower in the case of the injured and in their friends and relatives or in those of the mortal victims. In this sense, it is important to take into account the possible existence of cases of delayed PTSD, that is, cases in which at least 6 months have gone by between the attacks and the onset of PTSD symptoms, according to criteria of the DSM-IV. Although, to our knowledge there is no study of this kind of PTSD in victims of terrorist attacks, a review of studies of a different sort of people affected by traumatic events, mainly military combat personnel and victims of traffic accidents, concluded that delayed PTSD in the absence of prior post-traumatic symptoms was a very rare condition, but that the delayed onset that represents an exacerbation or reactivation of prior symptoms was found on average in 38.2% of military combat personnel with PTSD, and in 15.3% of the civil population with PTSD [30]. Therefore, one could speculate that delayed PTSD, understood as an exacerbation or reactivation of prior symptoms, can also be presented by a significant percentage of victims of terrorism following the attacks, especially in the injured. For example, this is shown in the results of a study with soldiers hospitalized for combat injuries in Iraq and Afghanistan, which suggests that the more severely injured showed more delay in the development of PTSD. This could explain some cases of delayed PTSD [31]. 5. CONCLUSIONS In the last few decades, terrorism has become one of the most serious and alarming problems worldwide. In response, over the past 10-15 years, systematic research programs about the psychopathological repercussions of terrorist attacks have been developed, although they have been limited practically to the massive terrorist attacks that have occurred in developed countries. As with other traumatic situations, after a terrorist attack, a great variety of psychopathological symptoms and diagnosable mental disorders may emerge [1, 4, 35]. However, there is no doubt that PTSD is the most frequent mental disorder among the direct or indirect victims of terrorist attacks and, therefore, it has received the most attention from scientific community. From the results presented in this narrative literature review, it follows that most of the people affected by terrorism will not develop PTSD and will manage to recover normally, with no significant psychopathological sequelae. But these results also underline that, after a terrorist attack a large percentage of the direct victims (about 18-40%) will develop PTSD, whereas the number of indirect

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victims who will develop this disorder will be lower, but even so, it will be higher than the habitual prevalence of PTSD in the general population before the attacks. The abundant scientific literature on the capacity of adaptation of human beings, which has increased notably in the recent years following the concept of resilience (adaptability, resistance, or the capacity of recovery) [36, 37], has caused many professionals, scientists, and managers and politicians from the area of mental health to focus their attention on the expectations of natural recovery of the majority of people. However, although pertinent, especially in certain contexts and moments of a terrorist attack or threat [38], it can also lead to a serious danger: that adequate psychological treatments are not administered to the people who need them or that too much time goes by before administering them so that the problems have become chronic. Consequently, after a terrorist attack, both the direct and indirect victims need psychological attention at short, medium, and long term (see García-Vera & Sanz [39] and García-Vera et al. [2], for reviews on the psychological treatment of the psychopathological repercussions of terrorist attacks). However, a core principal derived from the empirical data collected in this review is that such psychological attention should take into account the particular situation of each victim or group of victims and propose diverse goals, among them (but not only): to facilitate the normal recovery processes, promote people's resilience and capacity to adapt, alleviate or reduce their psychopathological symptoms, and improve their functioning. In fact, the results of the studies reviewed also indicate that, 6 to 9 months after the terrorist attacks, and especially one year later, the psychopathological repercussions will have decreased considerably in the affected general population as well as in the emergency and rescue personnel, although not in those injured in the attacks or in the friends and relatives of the dead or injured. At least, they will not have decreased to the point where one could refer to recovery. This shows that the evolution of the psychopathological repercussions of the attacks differ from one person to the next, and therefore suggests another core principle to take into account with regard to psychological assistance in terrorist attacks: the need for follow-up and to continue with longer term psychological assistance. Such follow-ups should be carried out with all the high-risk groups, among which are included: (a) people who present an acute stress disorder or other clinically significant symptoms as a consequence of the attacks; (b) relatives of people who died in the attacks; (c) people who already had a prior psychological disorder; (d) the victims who needed medical or surgical attention; and (e) people whose exposure to the attacks was particularly intense or long [40].

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Summing up, psychological assistance to the direct and indirect victims of terrorist attacks should take into account the diverse needs and characteristics of the affected individuals, and the fact that such needs have different priorities and can vary at different moments or phases after the attacks. CONFLICT OF INTEREST The authors declare no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS This chapter was prepared with the support of the Spanish Ministry of Science and Innovation (grant PSI2011-26450) and the Spanish Ministry of Economy and Competitiveness (grant PSI2014-56531-P). REFERENCES [1]

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García-Vera MP, Moreno N, Sanz J, et al. Efficacy and clinical utility (effectiveness) of treatments for adult victims of terrorist attacks: a systematic review. Behav Psychol-Psicol Conductual 2015; 23: 215-44

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Curran PS. Psychiatric aspects of terrorist violence: Northern Ireland 1969-1987. Br J Psychiatry 1988; 153: 470-5

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DiMaggio C, Galea S, Li G. Substance use and misuse in the aftermath of terrorism. A Bayesian metaanalysis. Addiction 2009; 104: 894-904

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García-Vera MP, Sanz J. Depressive and anxiety disorders following terrorist attacks. A review of empirical literature. Psicopatologia Clin Legal Forense 2010; 10: 129-48

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Salguero JM, Fernández-Berrocal P, Iruarrizaga I, Cano-Vindel A, Galea S. Major depressive disorder following terrorist attacks: a systematic review of prevalence, course and correlates. BMC Psychiatry 2011; 11: 96

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Muñoz M, Crespo M, Pérez-Santos E, Vázquez JJ. Early psychological consequences of the March 11, 2004, terrorist attacks in Madrid, Spain. Psychol Rep 2005; 97: 907-20

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Sprang G. Vicarious stress: patterns of disturbance and use of mental health services by those indirectly affected by the Oklahoma City bombing. Psychol Rep 2001; 89: 331-8

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Zimering R, Gulliver SB, Knight J, Munroe J, Keane TM. Posttraumatic stress disorder in disaster relief workers following direct and indirect trauma exposure to Ground Zero. J Trauma Stress 2006; 19: 553-7

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Vázquez C, Pérez-Sales P, Matt G. Post-traumatic stress reactions following the Madrid March 11, terrorist attacks: A cautionary note about the measurement of psychological trauma. Span J Psychol 2006; 9: 161-74

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Miguel-Tobal JJ, Cano Vindel A, Iruarrizaga I, González Ordi H, Galea S. Psychopathological consequences of Madrid 11-M terrorist attacks. Clin Salud 2004; 15: 293-304

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Gabriel R, Ferrando L, Sainz Cortón E, et al. (2007). Psychopathological consequences after a terrorist attack: An epidemiological study among victims, the general population, and police officers. Eur Psychiatry; 22: 339-46

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Haro JM, Palacín C, Vilagut G, et al. Prevalence of mental disorders and associated factors: Results of ESEMeD-Spain study. Med Clin (Barc) 2006; 126: 445-51

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Gelkopf M, Solomon Z, Berger R, Bleich A. The mental health impact of terrorism in Israel: A repeat cross-sectional study of Arabs and Jews. Acta Psychiatr Scand 2008; 117: 369-80

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DiGrande L, Perrin MA, Thorpe LE, et al. Posttraumatic stress symptoms, PTSD, and risk factors among lower Manhattan residents 2-3 years after the September 11, 2001 terrorist attacks. J Trauma Stress 2008; 21: 264-73

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Miguel-Tobal JJ, Cano-Vindel A, Iruarrizaga I, González-Ordi H, Muñoz M, Casado MI. Course of the psychological consequences derived from 11-M terrorist attacks. Madrid: Universidad Complutense de Madrid 2005 [cited: 19th February 2008]. Available from: http://www.ucm.es/info/seas/tep/Resumen_Rueda_de_prensa_(4-marzo-2004).pdf

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Nandi A, Galea S, Ahern J, Vlahov D. Probable cigarette dependence, PTSD, and depression after an urban disaster: Results from a population survey of New York City residents 4 months after September 11, 2001. Psychiatry 2005; 68: 299-310

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Shalev AY, Tuval R, Frenkiel-Fishman S, Hadar H, Eth S. Psychological responses to continuous terror: a study of two communities in Israel. Am J Psychiatry 2006; 163: 667-73

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Somer E, Ruvio A, Soref E, Sever I. Terrorism, distress and coping: high versus low impact regions and direct versus indirect civilian exposure. Anxiety Stress Coping 2005; 18: 165-82

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Fraguas D, Terán S, Conejo-Galindo J, et al. Posttraumatic stress disorder in victims of the March 11 attacks in Madrid admitted to a hospital emergency room: 6-month follow-up. Eur Psychiatry 2006; 21: 143-51

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Gil S, Caspi Y. Personality traits, coping style, and perceived threat as predictors of posttraumatic stress disorder after exposure to a terrorist attack: A prospective study. Psychosom Med 2006; 68: 904-9

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Kutz I, Dekel R. Follow-up of victims of one terrorist attack in Israel: ASD, PTSD and the perceived threat of Iraqi missile attacks. Pers Individual Differences 2006; 40: 1579-89

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Shalev AY, Freedman S. PTSD following terrorist attacks: A prospective evaluation. Am J Psychiatry 2005; 162: 1188-91

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Perrin MA, DiGrande L, Wheeler K, Thorpe L, Farfel M, Brackbill R. Differences in PTSD prevalence and associated risk factors among World Trade Center disaster rescue and recovery workers. Am J Psychiatry 2007; 164: 1385-94

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Stellman JM, SmithRP, Katz CL, et al. Enduring mental health morbidity and social function impairment in World Trade Center rescue, recovery, and cleanup workers: The psychological dimension of an environmental health disaster. Environ Health Perspect 2008; 116: 1248-53

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systematic review of the evidence. Am J Psychiatry 2007; 164: 1319-26 [31]

Grieger TA, Cozza SJ, Ursano RJ, et al. Posttraumatic stress disorder and depression in battle-injured soldiers. Am J Psychiatry 2006; 163: 1777-83

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Miguel-Tobal JJ, Cano-Vindel A, Gonzalez-Ordi H, et al. PTSD and depression after the Madrid March 11 train bombings. J Trauma Stress 2006; 19: 69-80

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Conejo-Galindo J, Medina O, Fraguas D, Terán S, Sainz-Cortón E, Arango, C. Psychopathological sequelae of the 11 March terrorist attacks in Madrid: an epidemiological study of victims treated in a hospital. Eur Arch Psychiatry Clin Neurosci 2008; 258: 28-34

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García-Vera MP, Sanz J. Psychology applied to terrorism. Psychological treatment for victims of terrorist attacks. In: Martin PR, Cheung FM, Knowles MC, Kyrios M, Overmier JB, Prieto JM, Eds. IAAP Handbook of Applied Psychology. Oxford, UK: Wiley-Blackwell 2011; pp. 663-83

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CHAPTER 11

Victims of Terrorism in Spain Over Two Centuries: The Path to Specific Legal Protection Agata Serranò* Department of Legal Science, Catholic University of Santo Toribio de Mogrovejo, Chiclayo, Perú Abstract: In this chapter, we address the evolution of the legal protection for victims of terrorism in Spain over two centuries. Due to the escalating terrorist violence that affected Spain in the second half of the 20th century, we will highlight the fact that lawmakers, up until the ‘80s, adopted a punitive approach to terrorists and, consequently, delayed the adoption of measures of assistance and reparation for victims of terrorism. In addition, we will stress that, from the '80s of the 20th century, thanks to the demands of a number of survivors and relatives of victims of terrorism, lawmakers became aware of the needs required by victims of terrorism and tried to meet the most urgent ones via compensatory legislative measures, specifically dedicated to this collective. With this in mind, we will show how Spanish lawmakers have taken a path to the adoption of specific legal protection for victims of terrorism, differentiating this vulnerable group from other victims of violent crime. However, although needs of victims of terrorism generated by the personal dimension of the crime of terrorism have been exhaustively met, we will highlight that the public dimension of the harm caused by terrorism creates certain needs that have not yet been fully met by lawmakers in Spain (and in the rest of the world).

Keywords: Public dimension of harm, Public recognition, Solidarity, Specific legal protection, Comprehensive reparation, Constitutional State, Victims of terrorism, Vulnerable persons, Vulnerable groups. 1. INTRODUCTION When analysing the evolution of Spanish legislation, it can be seen that, over the 20th and 21st centuries, lawmakers essentially took two approaches: a punitive approach to terrorists and a compensatory approach to victims of terrorism [1]. While a punitive approach (which has lasted until today) was used almost exclusively until the late 20th century, a compensatory approach has made inroads only in the recent decades [2]. Corresponding author Agata Serranò: Department of Legal Science, Catholic University of Santo Toribio de Mogrovejo, Chiclayo, Perú; Tel: 0051 997 882 442; E-mail: [email protected]

*

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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In section 2, we will confirm how lawmakers, up until the '80s of the 20th century, concentrated on measures that, on the one hand, prevented and countered terrorist actions and, on the other, punished those responsible. These measures were taken because of the need to address the escalating terrorist violence that affected Spain in the second half of the 20th century, with the aim of ensuring the security of citizens, and preserving democratic institutions and public order [3]. The urgency on the part of the Spanish State of having to give an immediate deterrent and corrective response to the problem of terrorism led lawmakers to adopt a mainly punitive approach to terrorists and, consequently, to defer the adoption of measures of assistance and compensation for victims of terrorism, who remained for many decades in a state of dire helplessness and vulnerability. In section 3, we will see how, from the '80s of the 20th century, thanks to the impetus of a number of survivors and relatives of victims of terrorism, lawmakers, sensitive to the condition of marginalisation and invisibility of victims of terrorism, demonstrated their solidarity with this collective by meeting some of their needs. Thanks to specific compensatory measures specifically for victims of terrorism, lawmakers began to ensure that survivors and relatives of victims of terrorism would be afforded differentiated protection with regard to victims of crime in general. In light of these considerations, this chapter examines the legislation on terrorism adopted from the second half of the 20th century until today, identifying its development from a punitive approach (which does not guarantee differentiated protection for victims of terrorism from other victims of crime) to a compensatory approach (which does provide specific protection for this vulnerable group). It is important to stress that the aim of this study is not to conduct an analysis of antiterrorism legislation as a whole, but solely to study some of its provisions in order to demonstrate said evolution. 2. THE PREVALENCE OF A PUNITIVE APPROACH AND THE ABSENCE OF SPECIFIC PROTECTION FOR VICTIMS OF TERRORISM UP UNTIL THE '80S OF THE 20TH CENTURY Throughout this article, by examining the protective legislation of the Democratic Spanish State passed during the 20th century, it will be found that such provisions established mostly measures of a punitive nature for terrorist actions, particularly in the criminal sphere. If we were to describe the evolution of Spanish legislation in the second half of the 20th century concerning terrorism, we could sum it up by two main periods: the pre-democratic phase (1944-1977) and the initial democratic phase (19781995). With regard to the pre-democratic phase, one of the first legal instruments

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which deserves mentioning, created immediately after the Spanish Civil War, was the 1944 Criminal Code (hereinafter CC). In this criminal code, terrorist crimes were regulated under the section of “Crimes against the Internal Security of the State”. CC article 263 punished the crime of threat, while articles 260, 261 and 262 of the CC regulated the commission of violent acts of crime such as destruction, sabotage, violent acts committed with explosives and weapons, all with the aim of undermining State security, disturbing public order and terrorising the population. The punishment for these crimes was life imprisonment or the death penalty [4]. Later, Decree-Law of 18 April, 1947, on “Banditry and Terrorism” was enacted [5]. With regard to terrorist crimes, this Decree-Law included the same crimes set out in the 1944 CC on violence but introduced the matter of the purpose of the terrorist crime: it specified that these crimes were committed with the aim of “undermining public security”. Crimes that were encompassed by banditry and could be punished were: violent robbery, kidnapping, and belonging to armed groups. It should be pointed out that if previously these crimes, in most cases, fell under the competency of the military criminal jurisdiction only in practice [6], with this decree the competency to recognise them was formally assigned to the military jurisdiction. To counter the attacks by the terrorist organisation ETA, Law 42/1971[7] was enacted and incorporated a new chapter on terrorist crimes in the Military Code of Justice. This Law included two new elements: firstly, attacks on the territorial unity of the Spanish State with a subversive goal were punished and, secondly, it specified that crimes of terrorism were no longer simply individual crimes but were planned and prepared within the framework of an organisation (the structural element of the terrorist crime). Law 44/1971 reformed the CC that had been in force until then and amended the types of terrorist crimes, repealing in turn previous laws on this matter that were merged with this reform. The subversive aim of terrorism to undermine territorial integrity was introduced; terrorism as a misdemeanour – which sanctioned sociopolitical protests – was also recognised, as was the illegal occupation of factories, churches and schools [8]. As a final legislative measure against terrorism during the Franco dictatorship, Decree-Law 10/1975, which added specific types of aggravations, stands out [9]. Certain forms of illicit association, and when the victim was a public official, were considered criminal aggravation. Acts of collaboration, such as the adaptation of places in which to hold hostages, were also punished [10].

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Following the death of the Dictator and with the beginning of the Transition to Democracy, lawmakers began to adapt the legal system to the standards of a country where the Rule of Law was correctly applied. On a procedural level, Decree-Law 2/1976 [11] conferred the competency to investigate and prosecute terrorist crimes to the ordinary courts: respectively to the Central Preliminary Courts and the National Court [12]. This transfer of competency to investigate and prosecute crimes related to terrorism from the military jurisdiction to the ordinary courts was finalised with the Moncloa Political Agreements in October 1977 [13]. Furthermore, with regard to these Agreements, terrorist crimes would differ from those labelled as political crimes. Spanish legislation, in fact, adapted to international requirements, specifically to the legal provisions set out by the 1977 European Convention on the Suppression of Terrorism, in addition to the granting of a general amnesty for political prisoners of the dictatorship in 1977 [14]. From the examination of the regulations adopted in the pre-democratic phase to counter terrorism it can be seen that they exclusively involved punitive measures and did not provide specific provisions of protection for the victims of this crime. With the proclamation of the Spanish Constitution (hereinafter SC) in 1978, fundamental rights and civil liberties of the Rule of Law were recognised for all citizens. Among the constitutional precepts that directly affected terrorist crimes, Article 13 of the SC referred to the regime of extradition and in paragraph 3 expressly prohibited extradition for political crimes, “not regarding terrorist acts as such”. In turn, Article 15 of the SC expressly abolished the death penalty, except as established by military criminal law during wartime [15]. Following the establishment of the SC, and in response to an increase in terrorist attacks in the country, Decree-Law 3/1979 was passed [16]. In addition to expanding the powers of the National Court, this Decree-Law introduced new kinds of offences relating to crimes committed by armed gangs or groups. Via this decree, Spanish lawmakers awarded, for the first time in the 20th century, minimum compensation for victims for harm caused by terrorism. Prior to the attempted coup of 23 February, 1981, Organic Law 2/1981 [17], regulating the new crimes related to terrorism was enacted. It classified the conduct of those belonging to armed gangs or groups taking part in courses or terrorist training camps, and also punished cooperation with armed, foreign terrorist gangs or groups. Sanctions were increased for those funding any other kind of collaborative activity and lastly, and something entirely new, so-called repentant terrorist conduct was regulated, and allowed, in these cases, a reduction in their sentence by one or two degrees. Organic Law 9/1984 unified, in a single legislative text, all the criminal and procedural measures in force with regard to

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this matter. It also adapted the different regulations to constitutional principles and guarantees and sanctioned new terrorist conduct [18]. In the '80s, lawmakers began to intervene to meet the right to financial compensation for victims of terrorism by providing compensation for those affected and affording special pensions for widows and orphans. Some of the regulatory provisions that granted said benefits were set out in Organic Law 9/1984, in Royal Decree 336/1986, and in Royal Decree 1311/1988 [19]. From the ‘90s onwards, under Royal Decree 851/1992, extraordinary pensions were extended to all citizens who were disabled or whose relative had died as a result of acts of terrorism. Until that year, these pensions had only been granted to those who were civil servants or those actively serving in the military. In 1981, this right was extended to retired pensioners who, precisely because of their previous position as civil servants, were injured as a result of acts of terrorism. In the case of death, compensation would be conceded to their relatives. From Royal Decree 851/1992 onwards, pensions were granted to all citizens regardless of whether or not they had been civil servants and affiliated to the Social Security [20]. Organic Law 10/1995 introduced a new criminal code in which all conduct relating to this matter was classified in Chapter VII under the designation “Crimes of Terrorism”, in Title XXII which regulated, as it still does, crimes against public order. With regard to the crime of belonging to an armed terrorist gang, organisation or group, the 1995 CC regulated it in Articles: 515.2 and 516 of the 1995 CC (in Ch. IV of Title XXI). According to Art. 516.1, promoters and leaders of armed gangs, terrorist organisations and groups would receive from 8-14 years imprisonment and disqualification from public employment or office for a period of 8-15 years [21]. With regard to the crime of terrorist cooperation, it is a crime as defined by Art. 575 of the 1995 CC which sanctioned anyone seeking to facilitate any act of collaboration with the activities or aims of a terrorist organisation or group with a sentence 5-10 years' imprisonment. Acts of collaboration (Art. 576.2) included information on the surveillance of people, assets or facilities [22]; the construction, adaptation, transfer or use of lodging or storage space; the concealment or transfer of people linked to armed gangs, the organisation of training practices or help for them, and in general any other form of assistance or financial cooperation or other type of mediation with the activities of an armed terrorist gang, organisation or group [23]. In addition, it established sanctions for aggravating circumstances when the information on or the surveillance of people, mentioned in the paragraph above, endangered their life, physical integrity, freedom or assets. If the actions described were carried out, the culprit would be sanctioned as being responsible or complicit for it, as appropriate [24].

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With regard to CC Art. 577, it sanctioned those who, although not belonging to a terrorist organisation or group, committed the following crimes with terrorist aims: murder, injury, illegal detainment, kidnapping, threatening or coercing people; arson or damage to property; possessing, manufacturing, storing, trafficking in, transporting or supplying weapons and ammunition, explosive, flammable, incendiary or asphyxiating devices and substances. Terrorist aim is understood as the intention of subverting constitutional order or seriously altering public peace or contributing to these ends by threatening the inhabitants of a population or the members of a social, political or professional group [25]. The crimes of damage to property and arson were set out in the 1995 CC in Art. 571 [26] and were sanctioned with 15-20 years imprisonment with aggravating circumstances; sentences of 20-30 years for attacks against life, physical integrity and health (CC Art. 572.1) and for crimes related to the possession of weapons, ammunition, explosives, flammable and incendiary devices (CC Art. 573). CC Article 579.1 regulated provocation, conspiracy and incitement to commit terrorist crimes. When dealing with conspiracy, in the form of a preparatory act in connection with a principal crime to which it was aimed, it required twofold proof: a) that all the elements required for that kind of crime to be committed in fact coincided (in this case, that of the previously studied Art 576.); b) verification of the presence of the requirements that Art. 17.1 required for its definition of conspiracy, namely, that two or more people were in agreement to commit a crime and were able to carry it out [27]. The reduction of sanctions was regulated by CC Article 579. 3. This precept, with a precedent in Article 57 bis b) of the 1973 CC, introduced by Organic Law 3/88 of 25 May, and in accordance with measures taken in other jurisdictions – for example, in Italy – regulated the repentant person, from which consequences not only of a substantive nature could be deducted, and which we now are now studying, but it also raised interesting considerations of a legal procedural nature. The objective of this reward system within criminal law aimed to prevent the commission of future crimes and achieve the dismantling of terrorist organisations [28]. As we have seen, the legal measures adopted up until the '80s established only sanctions for terrorists. Since the '80s, lawmakers devoted, for the first time, their attention to victims of terrorism, addressing the basic needs of this vulnerable group of people. We conclude, therefore, that until the '80s of the 20th century, Spanish legislation regarding terrorism made absolutely no legal provision to ensure differentiated protection for victims of terrorism with respect to victims of crime in general.

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3. A COMPENSATORY APPROACH AND EVOLUTION TOWARDS SPECIFIC PROTECTION FOR VICTIMS OF TERRORISM FROM THE '90S OF THE 20TH CENTURY In the 80's, thanks to the impetus of a number of survivors and relatives of victims of terrorism, society and public authorities began to become largely sensitised towards the needs of people affected by terrorism. Awareness campaigns and the progressive awareness of society greatly influenced the sensitivity of lawmakers who, from the '90s, partially accepted their demands by enacting laws on protection and compensation for victims of terrorism. Thanks to the recognition of their status and their protection guaranteed by legislation specifically earmarked for this collective, victims of terrorism have acquired increased legal visibility. Examining the main regulatory provisions on protection for victims of terrorism in Spain, it can be seen that these measures were adopted very late in the day and have evolved very slowly over time. Although most of the belated measures granted were retroactive, it highlights a disparity of treatment between those who were victimised during terrorism's first decades and those who were victimised more recently [29]. Furthermore, when analysing these legal measures, the tendency of lawmakers to initially satisfy primary and immediate needs, such as medical assistance and financial compensation – due to their urgent nature –, should be highlighted. Secondly, Spanish lawmakers not only guaranteed victims of terrorism the fundamental right to financial compensation, they also assigned a range of free services for victims of terrorism to be given by specialised bodies. Examining Spanish regulatory provisions on the protection of victims of terrorism since the late '70s until today, significant developments on both a legislative level and an administrative and institutional level can be appreciated. In the '90s, a new phase that can be called a “phase of solidarity with victims of terrorism” began, during which lawmakers constructed a specific legal framework to meet some of the demands of this vulnerable collective. On the one hand, it established measures of a financial and compensatory kind and, on the other, it ensured protection for the attentive care of victims, assigning specific bodies the function of providing specialised care for victims of terrorism. These bodies continue to carry out their role today as intermediary institutions between the collective of victims and Government and Public Administration [30]. In the legislation established for the protection of victims of terrorism during this phase, Law 32/1999 on Solidarity with Victims of Terrorism should be highlighted. It was adopted by unanimous agreement by every political group represented in parliament as a tribute of honour by Spanish society to victims of terrorist violence, and later amended by Law 2/2003 [31]. This Law was a

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milestone in the protection of and assistance to victims of terrorism in Spain as it ensured them personalised assistance for their psychological and socio-family spheres [32] and afforded their condition public recognition. More specifically, thanks to said Law, not only was physical harm compensable, but so was the psychophysical harm suffered by those who were affected by terrorist acts that occurred from 1 January, 1968, carried out by a person/people belonging to armed gangs or groups, or who acted with the aim of seriously disturbing public peace and safety. In addition, any amount received as a result of compensation was exempt from income tax and any other personal tax that they may have been subject to. This exemption was also established for all types of tuition fees at official centres for study at all levels of education for victims of acts of terrorism and extended to their spouses and children. According to Argomaniz, the extension of retroactive compensation to the predemocratic period as established by lawmakers was highly symbolic because, on the one hand, it aimed to breach, as much as possible, the disparities in treatment between those who were victimised during the Franco regime, and those who were victimised during the democratic period [33]. On the other hand, and in our opinion, it indirectly reinforced the condemnation of terrorism by lawmakers, regardless under which regime the victimisation took place, at the same time reaffirming the democratic values of protection, assistance, equality and solidarity for and with victims of terrorism. According to Rodríguez Uribes, the extension of retroactive compensation to the Franco period was because lawmakers not only intended to respond to terrorism, strictly speaking, and its consequences on people, but also wanted to confront terrorism, in a broader sense, as a method adopted by the dictatorial regime [34]. In our opinion, if the regulatory provisions with regard to criminal matters defining terrorism as a crime committed with the aim of subverting constitutional order and seriously altering public peace (CC Art. 571) [35] are taken into account, the extension of this retroactivity to the pre-democratic (and preconstitutional) era might seem a contradiction. However, we believe that such retroactive measures applied to the pre-constitutional era are justified by the main objective that the Law defines in its preamble: “Via this Law Spanish society honours and pays tribute to those who have suffered terrorist violence. […] Victims of terrorism have been, due to their personal contribution, the exponent of a society determined to not allow anyone or anything to subvert the values of coexistence, tolerance and freedom. Victims therefore represent the clearest paradigm of the collective will of citizens in favour of a peaceful future that must be constructed through dialogue, consensus and mutual respect among the various political parties that hold the legitimate representation of citizens. The restoration of democracy confirmed a project of coexistence determined to

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overcome the old conflicts of our History. A project based on the Rule of Law, common will and the free and peaceful exercise of every political persuasion. Nothing, therefore, justifies the use of any kind of violence nor is there argument for a few to have destroyed the peace”. The aim of lawmakers in the ‘90s, therefore, was to recognise all victims of terrorism equally, yet to overcome the political and social barriers that existed if the historical moment when they were victimised was taken into account. The lawmakers' decision in favour of applying retroactivity to the Law shows that in this case the “protected legal value” that the crime of terrorism endangered was not only democratic and constitutional order but also the safety of the res publica in general. As crimes of terrorism are not only attacks against individuals who become victims but also attacks against the res publica to the detriment of coexistence, tolerance and freedom – values that lawmakers defined in the preamble – the Law on Solidarity established that all victims had to be compensated by the State, regardless of the historical era in which they were victimised. To ensure equality for all victims, the State, thanks to this Law, accepted, as an extraordinary measure, the payment of corresponding compensation by way of civil liability in cases when those responsible for their victimisation were either insolvent, it was not possible to identify them or they had not yet been convicted. This Law therefore extended protection to all victims of terrorism, regardless of whether their right to compensation had been recognised through a conviction, as well as for those cases where such circumstances had not been fulfilled. To publicly recognise and honour victims of terrorism, the Law of Solidarity ― taking into account the successive amendment of Law 2/2003 [36]― created the Royal Order of Civil Recognition for Victims of Terrorism, thanks to which, the Government, upon the request of the interested parties or their heirs, granted decorations of the level of Gran Cruz (Great Cross) posthumously to those killed in terrorist acts, and of the level of Encomienda (Commander) to those wounded or kidnapped in terrorist acts. It can be said that, with this measure, Spanish lawmakers took a step forward towards specific protection for victims of terrorism. The formal recognition of the condition status of victims of terrorism, in fact, not only recognises the personal harm caused by the perpetrator to the victim at the moment a terrorist crime is committed, but is also aware that this harm must be publicly visible. By recognising both the private dimension as well as the public dimension of victimhood it is possible to create the appropriate mechanisms to restore, to the extent possible, the private dignity and public dignity of victims of terrorism [37]. Furthermore, recognition of the public dimension of victimhood is the first step to ensure differentiated protection for

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victims of terrorism with respect to victims of other crimes. This differentiated protection is based on the fact that crimes of terrorism are not only crimes directed against single individuals, as are all private crimes, but also against the res publica that victimised citizens represent at that moment [38]. With regard to the protection of victims on an administrative-institutional level, and as a result of a new awareness acquired during this phase by the Spanish State concerning victims of terrorism, Royal Decree 1885/1996 established, within the Ministry of the Interior, the General Subdirectorate for Service to Victims of Terrorism [39]. This body was created with the goal of providing victims with personalised and individual attention, developing social programmes of action aimed at the problems affecting personal, family, social, psychological, administrative, financial and work spheres. In addition, in 2002, the Victims of Terrorism Foundation (FVT) was established. This is a public body with an official status whose main role is to coordinate the activities of most of the Foundations and Associations of victims of terrorism present in Spain. Via its various activities, among which is the organisation of teaching activities, cultural events and the carrying out of international programmes, the FVT has been active until today, and still works to raise public awareness about the effects of terrorist violence and the needs of victims [40]. Spanish lawmakers early this century began to abandon the traditional view that they had taken to tackle the problem of terrorism in the previous century. This understanding had led them to consider that were two main players involved in the problem of terrorism: the group that carried out the terrorist acts and the State that, within the framework of the Law, prevented, judged and sentenced them. From the 21st century, lawmakers broadened their view to include a third player, proven to be essential for a better understanding of the problem of terrorism: civil society. Spanish lawmakers, helped by the actions of the judiciary [41], came to understand that in the circles closest to terrorist groups ― in particular with regard to ETA ― part of civil society played a key role in supporting, facilitating and backing terrorist activities [42]. Furthermore, another part of civil society ― the survivors, relatives of victims, those who had been threatened ― was not only affected specifically by the acts of terrorist groups but also by the connivance, justification, advocacy of that part of civil society that supported terrorism [43]. Among the results of this new understanding was, for example, the approval of Organic Law 5/2000 which classified the new crime of exaltation or justification of terrorist crimes established in CC Art. 578. Said Article sanctioned, by imprisonment for 1-2 years, the exaltation or justification of terrorist crimes by any means of public expression or dissemination or of those who participated in

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the carrying out or performance of acts involving discredit, contempt or humiliation of victims of terrorist crimes or their families [44]. Said article was introduced in order to protect the dignity of survivors and relatives of victims of acts of terrorism from possible acts of advocacy by terrorist circles likely to cause re-victimisation [45]. Fruit of the new understanding with which lawmakers tackled terrorism from the '90s onwards included, among other measures, Organic Law 6/2002 [46] which allowed the courts to ban, with all constitutional guarantees, any political group with connections and/or that did not condemn the actions of terrorist organisations. From when the Law came into effect, Herri Batasuna [47], the political wing of ETA, and other political groups considered to be its continuation, have been banned [48]. Also, throughout the first decade of the 21st century, a new phase of protection for victims of terrorism which we call “the phase of comprehensive protection” began. In 2004, with the aim of unifying the actions of the various bodies of the Public Administration dedicated to the protection of victims of terrorism and of achieving comprehensive protection for victims of terrorist acts [49], the High Commission for Support for Victims of Terrorism was instituted by Royal Decree 2317/2004. Advocated by the High Commissioner Gregorio Peces-Barba, comprehensive care consisted of the holistic effort to attend to, help and compensate those affected by terrorism, transforming the morality of their claims into fundamental rights. Among its established functions, the High Commission followed up the actions carried out by the Public Administration; collaborated with many associations, foundations and institutions whose aim was to assist victims of terrorism; cooperation with other public administrations; the continuous financial assessment and social situation of victims of terrorism; proposed legislative and regulatory initiatives to improve mechanisms on information, care and support for victims of terrorism. Following the resignation of the High Commissioner, in 2006 the government abolished this body, whose competencies were integrated into the General Directorate of Support of Victims of Terrorism, established by Royal Decree 991/2006 [50]. Integrating into this unit the tasks being carried out by the High Commission for Support for Victims of Terrorism and those carried out by the General Subdirectorate for Service to Victims of Terrorism, the General Directorate for Support to Victims of Terrorism was part of the structure of the Ministry of the Interior from which two newly created Subdirectorates depended: the General Subdirectorate for Support to Victims of Terrorism and the General Subdirectorate for Assistance to Victims of Terrorism and Citizen Service.

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This evolutionary phase was consolidated by the enactment of Law 29/2011 on Recognition and Integral Protection for Victims of Terrorism ―amended in some aspects by Law 2/2012 [51]― and could be considered to be one of the most advanced legal instruments in Europe with regard to the protection of the rights of victims of terrorism [52]. This Law brought together the various regulations in force with regard to protection, compensation and assistance for victims, updating and refining them into a single provision. Based on the principle of equality, Law 29/2011 tried to fill the gaps and tackle the discrimination caused by the abovementioned provisions, often denounced by this collective of victims. To this end, it unified the benefits which until then had been differentially regulated in previous laws and increased the amounts (Third title). However, it established the acceptance of the State's responsibility for civil liability for compensation only in cases ending in conviction when those responsible for their victimisation were insolvent, it was not possible to identify them or they had not yet been convicted [53]. In this regard, the Law assigned a specific amount for each compensable category so that all victims were guaranteed the same compensatory treatment, thereby avoiding possible differences in financial treatment when faced with similar situations. With regard to the temporal scope, its application was extended retroactively to events that occurred from 1 January, 1960, thereby encompassing several cases of victimhood that had been left unprotected by the Law of Solidarity (Art.7) [54]. Similarly, with respect to the territorial scope, the Law regulated the compensatory system for cases of exceptional assistance for harm suffered abroad (Art. 6) [55]. Also incorporated into this legislation were various Articles of several legislative provisions that established different compensation for damage of a material nature: damage to homes and vehicles, commercial and industrial establishments, and offices of organisations and political parties (Art. 23) [56]. It also established provisions for the possibility of exercising a preferential right for access to housing, whether for purchase or rent, for whoever needed it as a result of or due to the sequelae of an act terrorism (Chap. 4). In addition, Law 29/2011, sensitive to terrorism-related intimidation suffered by numerous citizens, introduced a new figure among the beneficiaries of the Law: that of those who were threatened (Art. 5) [57]. To meet the needs caused as a consequence of the effects of acts of terrorism on the lives of those affected, it established the possibility of geographical and functional mobility as well as the rearrangement of work schedules. It also established a requirement for active employment policy plans to include a section specifically for victims of terrorism in keeping with the condition of their physical or mental needs. These measures allowed those who have suffered from acts of terrorism not only to continue with

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their professional activities, but also to acquire new training in order to be in a position to return to work. With regard to the protection of the privacy of victims, according to criminal laws in force in Spain (and in coordination with the provisions of CC Art. 578 [58]), said Law considered any advertising that uses the image of victims in a contemptuous, humiliating or sensational way, or for profit, to be unlawful (Art. 43). The media, on their part, must avoid any disproportionate or inappropriate use of personal images of them and Public Authorities must foster training and awareness campaigns aimed to journalists (cap. 7). Along with free legal assistance for victims of terrorism (Art. 48) this Law established the so-called “principle of minimal harmfulness during the process of criminal proceedings”, ensuring victims were not forced to have direct visual contact with the accused and to avoid the former being exposed to the latter's manifestations, gestures or statements that could denigrate or offend them (Art. 49). These measures included the implementation and consolidation of an Office for Victim Support in the National Court as well as specific offices offering specialised care [59]. It also stated that the government would create a National Centre for Memory for Victims of Terrorism (Art. 57) [60] and that public authorities would promote active measures to ensure the remembrance and recognition of victims of terrorism (Art. 58). At the same time, and to defend the honour and dignity of victims, the Law expressly established the prohibition in public places of monuments, emblems, badges, plaques and other objects or the individual or collective commemorative mention or exaltation or glorification of terrorism or terrorists (Art. 61). As we can see, Law 29/2011 on the Recognition and Integral Protection of Victims of Terrorism tried to satisfy not only financial assistance and compensatory needs, but also but also those of a legal, political, social and moral nature [61]. As such, “it is based on the values of memory, dignity, justice and truth. Memory, to safeguard and keep their social and political recognition alive. Dignity, as a symbol of victims in defence of the Democratic State with the Rule of Law correctly applied and in the face of terrorist threat. Justice, to compensate victims, prevent situations of distress, and to convict terrorists. Truth, to highlight the violation of human rights posed by terrorist activities (Art. 2.1.). To fulfil these values, the Law brought together a comprehensive set of measures that the Public Authorities and Administration must promote and adopt. However, despite the great advances with regard to the specific protection for victims of terrorism that we have seen with the enactment of this Law, their needs relating to the public dimension of the harm caused by terrorism―such as truth, memory, justice and respect for dignity―have not yet been fully met. In fact, Spanish lawmakers

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have considered truth, memory, justice and respect for dignity to be the underlying principles of the most recent regulatory provisions studied, yet without actually and effectively making them rights for victims of terrorism. 4. CONCLUSION As we have seen, the need to address the escalating terrorist violence that affected Spain in the second half of the 20th century led lawmakers, up until the '80s, to primarily take a punitive approach to terrorists and, consequently, to delay the adoption of measures of assistance and reparation for victims of terrorism. From the '80s of the 20th century, thanks to the demands of a number of survivors and relatives of victims of terrorism, lawmakers became aware of the needs required by victims of terrorism and tried to meet the most urgent ones via compensatory legislative measures, specifically dedicated to this collective. Examining these regulatory provisions it can be seen that they were enacted very late in the day – given that the first terrorist attacks were recorded in 1960. It also highlights the tendency of Spanish lawmakers to first satisfy all primary and immediate needs due to their urgent nature (such as medical and psychological care, specialised care, financial compensation, protection against threats, compensation for material damage, tax exemptions, etc.), by offering a series of free services for victims of terrorism provided by specialised bodies. These needs of victims of terrorism often match the needs of victims of general violent crimes because they are generated by the personal dimension of the crime of terrorism: in this case, the act of terrorism is a criminal act committed by an individual or individuals (the terrorist/s) against another individual or other individuals (the victim/s) and generates harm of a personal nature. However, if we take into consideration the public dimension of the harm generated by terrorism, it cannot ignored that this is a particularly serious crime committed with the political and totalitarian intention of subverting constitutional and democratic order: in other words the res publica . Terrorism is, therefore, a criminal act committed by an individual or individuals (the terrorist/s) against another individual or other individuals (the victim/s) for the purpose of attacking and destroying public order (the public dimension of the harm caused). The public dimension of the harm caused to victims by terrorism therefore creates certain needs that have not yet been fully met by lawmakers in Spain (or in the rest of the world). They are truth, memory, justice and respect for the dignity of victims of terrorism. As we have seen, these values ​were considered by Spanish lawmakers to be guiding principles for the latest regulations enacted in favour of victims of terrorism, taking them into account on a moral level but not effectively recognising them as rights for victims of terrorism.

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Truth, memory, justice and respect for dignity, in societies that have for many decades suffered the horrors of terrorism, take on multiple meanings: they are individual rights for victims of terrorism, respect for whom is a duty in a State where the Rule of Law is correctly applied, and is a moral responsibility for every citizen. Recognising and fulfilling these rights for all victims of terrorism would allow Spanish society (as well as European society and every country in the international community) to heal the wounds of the past and ideally build a future without injustice. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS I would like to thank Professor J. Alberto del Real Alcalá, who edited this book, for having invited me to write this chapter. The gratitude a researcher feels for their mentor is eternal and is one that knows no bounds. REFERENCES [1]

In this article, when we talk of “victims of terrorism”, we refer to both the survivors as well as the relatives of those killed by terrorism.

[2]

In this chapter, when we use the terms “punitive approach” and “punishment”, we are referring to a democratic system’s assignment of punishment which ensures the person convicted full guarantee of their rights as established by a Democratic State (where the Rule of Law is correctly applied) and whose end goal is the rehabilitation of the culprit into society.

[3]

Spain has unfortunately been subjected to numerous attacks by various terrorist groups of different origins and ideologies that have caused 1,326 fatalities, left hundreds injured and created untold suffering for its citizens. The bloodiest years, caused by domestic terrorism, were 1978 with 87 fatalities, 1979 with 116 victims, and 1980 with 121 victims. In 2004, 192 fatalities were reported following the attacks in Madrid on 11 March, 2004, carried out by an independent jihadist cell inspired by the global jihad movement. Cfr. Serranò A. Aprendiendo con las víctimas del terrorismo: lecciones desde la experiencia española. In: Cuesta C, Dir. Aprendiendo con las víctimas del terrorismo. Propuesta didáctica para la ciudadanía activa por la Memoria y la Justicia. Madrid: Miguel Angel Blanco Foundation 2015; pp. 11-49.

[4]

See Majada A. La determinación cuantitativa de la pena en el Código Penal de 1944. Revista General de Derecho 1949: 702-713.

[5]

See Decree-Law on banditry and terrorism of 18 April, 1947..

[6]

González Cussac, JL. El Derecho Penal frente al terrorismo. Cuestiones y perspectivas. In: Gómez Colomer JL, González Cussac JL. Terrorismo y Proceso Penal Acusatorio. Valencia: Tirant lo Blanch 2006; p. 101 and ff.

[7]

See Laws 42/1971 and 44/1971 on the Reform of the Military Code of Justice.

[8]

Ibídem .

[9]

Decree-Law10/1975, of 26 August on the prevention of terrorism.

[10]

Arroyo Zapatero L. Terrorismo y Sistema Penal. In: Reforma política y Derecho. Acts from the Course

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held at the Menéndez Pelayo International University. Madrid: Ministry of Justice and Centro de Publicaciones 1985. [11]

See Decree-Law 2/1976 of 18 February, which amended Law 10/1975 on the prevention of terrorism of 26 August, and regulated the competency for the prosecution of such crimes.

[12]

Martín Ostos JS. La audiencia nacional y los delitos de terrorismo. Revista universitaria de Derecho Procesal 1998; 1: 119-133.

[13]

For the complete text of the 1977 Moncloa Agreements from http://vespito.net/historia/ transi/pactos.html [last accessed: 27 April 2014].

[14]

Cfr. Law 46/1977, of 15 October, on amnesty.

[15]

Bobillo FJ. Constitución y legislación antiterrorista. Revista de Estudios Políticos 1985: 47-76.

[16]

See Royal Decree-Law 3/1979 of 26 January on the Protection of Public Safety.

[17]

Cfr. Organic Law 2/1981 of 4 May, amending and supplementing certain Articles of the Criminal Code as well as the Military Code of Justice.

[18]

See Organic Law 9/1984 of 26 December, against action by armed gangs and terrorist elements.

[19]

See Organic Law 9/1984 of 26 December, against the action of armed gangs and terrorist elements. See also Royal Decree 336/1986, of 24 January, which regulated compensation to victims of armed gangs and terrorist elements. See also Royal Decree 1311/1988, of 28 October, which regulated compensation to victims of armed gangs and terrorist elements.

[20]

According to the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Humanitarian Law” (General Assembly Resolution 60/147 of 16 December, 2005) reparation must, whenever possible, restore the victim to their prior situation before the violation they suffered. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, the return to their place of residence, restoration of employment and return of property and/or assets.

[21]

The 2010 CC reform, which substituted previous Articles 515. 2 and 516 and incorporated said crimes in Chapter VII, regulated the crime of belonging to a terrorist organisation or group in Art. 571 (for both qualified and ordinary membership). Currently, CC Art. 571.1 (qualified membership) sanctions not only leaders and promoters, but also those who constitute or coordinate the organisation of a terrorist group, thereby expanding the circle of potential active subjects with this conduct. Art. 571.2 of the CC (ordinary membership) and distinguishes between those who are actively involved in the organisation and those who simply are part members of it. Art. 571.3 of the CC defines terrorist organisations and groups (there is no longer any reference to armed gangs). As for the concept of an organisation or terrorist group, ordinary legislation defines them as they were defined by the abovementioned European Union's Council Framework Decision of 13 June, 2002 (amended by Framework Decision 2008/919/JHA of the Council of the European Union of 28 November, 2008).

[22]

The 2010 CC expanded the concept of collaboration with a terrorist organisation or group to include in it paragraph 3 as acts of collaboration with terrorist activities of recruitment, indoctrination, training or drilling aimed at the incorporation of other members to the organisation or the commission of any kind of terrorist crime. Until now, the recruitment or training of terrorists was unquestioningly part of previous CC articles 516 (the crime of belonging to or being a member of an armed terrorist gang, organisation or group, currently Art. 571 of the CC) or of Art. 576 of the CC (collaboration with an armed terrorist gang, organisation or group). However, adaptation to European regulations led lawmakers to specify it in a new Article.

[23]

Gutiérrez Gil AJ. La participación por colaboración en el delito de terrorismo. In: Cuadernos de Derecho Judicial 2001; 2: 13-70.

[24]

Núñez Castaño ME. Los delitos de colaboración con organizaciones y grupos terroristas. Madrid: Dykinson 2013.

[25]

Fernandez Requena J. El delito de terrorismo urbano o de baja intensidad: análisis del artículo 577 CP.

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Valencia: Tirant Lo Blanch 2009. [26]

These crimes were set out in Art. 572 of the 2011 Criminal Code.

[27]

The Law amending the 2010 CC introduced a second paragraph in section 1 of the same. As for the new second paragraph included in section 1, it expressly established: “when it is not set out in the preceding paragraph or any other precept of this Code that establishes serious crime, the distribution or dissemination by any means of messages or slogans designed to provoke, encourage or facilitate the commission of any crime under this chapter, generating or increasing the risk of actual commission, shall be sanctioned by a sentence of 6 months to 2 years imprisonment”. This new paragraph set out a subsidiary or residual preparatory act on the assumption that the conduct did not meet the requirements of a conspiracy, proposition or provocation, set out in the preceding paragraph of said article or in other precepts of the Criminal Code. The new type of crime requires, on the one hand, that the perpetrator intended to induce, encourage or facilitate the commission of an offence, and, on the other, that due to their behaviour the actual commission of a terrorist offence was generated or the risk thereof was increased. See Organic Law 5/2010, of 22 June, that modifies Organic Law 10/1995 of the 23 November of the Criminal Code.

[28]

For more in-depth information on repentant terrorists, see García del Blanco V. La dudosa eficacia de los beneficios premiales por arrepentimiento en terrorismo. In: Cuerda Riezu A, Jiménez García F, Coord. Nuevos desafíos del Derecho Penal Internacional : terrorismo, crímenes internacionales y derechos fundamentales. Madrid: Tecnos 2009; pp. 99-122.

[29]

In addition to the national legislation we have examined in this chapter and which is applied throughout the country, many autonomous communities (regions) have passed their own legislation to protect victims of terrorism such as the Basque Country, Law 4/2008 on the Recognition and Reparation for Victims of Terrorism of the Basque Parliament; Andalusia, Law 10/2010, of 15 November, on Measures of Assistance and Care for Victims of Terrorism in Andalusia; Aragón, Law 4/2008 of 17 June on Measures in Favor of Victims of Terrorism; Valencia, Law 1/2004 of 24 May on Aid for Victims of Terrorism; Extremadura, Law 6/2005 of 27 December on Measures for the Assistance and Care of Victims of Terrorism as well as the creation of The Extremadura Centre for Peace Studies; Madrid, Law 12/1996 of 19 December on Aid to Victims of Terrorism; for the region of Murcia, see Law 7/2009, of 2 November on Aid to the Victims of Terrorism of the Autonomous Community of the Region of Murcia; Navarra, Foral Law 9/2010 of 28 April on Aid to Victims of Terrorism. For further information on state and regional legislation for victims of terrorism in Spain Cfr. Sempere Navarro AV, Kahale Carrillo DT. Reconocimiento y protección integral a las víctimas del terrorismo, estudio de la normativa básica estatal y autonómica. Madrid: Eolas Editions 2014.

[30]

Pérez K. Los derechos de las víctimas y su conquista. Bilbao: Asociación para la Defensa de la Dignidad Humana 2003.

[31]

See Law 32/1999 of 8 October, on solidarity with victims of terrorism.

[32]

Royal Decree 288/2003 guaranteed the right, with medical prescription, to psychological treatment for the sequelae of the attack for survivors, as well as for relatives or people who lived with them, from the moment the disorder, caused by the attack, appeared. Children and students in preschool, primary and compulsory secondary education suffering from learning disabilities or social adaptation could receive free, prioritised psychopedagogical support following a terrorist act they themselves or relatives or people who live with them had suffered. See Royal Decree-Law 288/2008, of 7 March, that approves the Regulation on help and compensation for victims of terrorist crimes.

[33]

On the symbolic nature of these measures, see Argomaniz J. State Responses to Victims of Terrorism Needs in Spain. In: Argomaniz J, Lynch O. International Perspectives on Terrorist Victimisation: An Interdisciplinary Approach. London: Palgrave McMillan 2015; pp. 124-148.

[34]

Cfr. Rodríguez Uribes JM. Las víctimas del terrorismo en España. Madrid: Dykinson 2013; pp. 198 and ff.

[35]

On the concept of peace as a right in relation to the nation Cfr. Del Real Alcalá JA. El derecho a la paz frente a la nación obligatoria. In. Garrido MI, Ed. El Derecho a la paz frente como derecho emergente.

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Barcelona: Editorial Atelier 2011; pp. 87-104. [36]

Law 2/2003 of 12 March, modifying Law 32/1999 of 8 October, on solidarity with victims of terrorism.

[37]

Serranò A. Aprendiendo con las víctimas del terrorismo: lecciones desde la experiencia española. cit., pp. 25 and ff.

[38]

Serranò A. La lucha social contra el terrorismo: testimonios de algunas víctimas de ETA. Eguzkilore. Cuaderno del Instituto Vasco de Criminología 2012; 26: 253-279.

[39]

Royal Decree 1885/1996, of 2 August, on the Basic Organic Structure of the Ministry of Interior.

[40]

The website of the Victims of Terrorism Foundation is: http://www.fundacionvt.org/ [last accessed: 4 April, 2015].

[41]

Among other edicts of suspension against entities that were part of the circle and civil fabric of ETA, is the edict of 10 May, 2001, issued by Judge Baltasar Garzón, who ordered the suspension of the activities of the Jarrai, Haika and Segi youth movements. While the National Court declared them to be “unlawful associations”, Supreme Court ruling 27/2005, considered them to be “terrorist organisations” in its ruling 50/2007 as they operated in line with the aims of ETA. See the National Court ruling of 20 June 2005, Criminal Division 27/2005; and the Supreme Court ruling of 19January 2007, Criminal Division 2 50/2007.

[42]

Portero L. La trama civil de ETA. Córdoba: Arcopress 2008.

[43]

Fernández Martínez JM. Enaltecimiento del terrorismo. Revista Aranzadi Doctrinal 2010; 10: 37-44. .

[44]

Other punitive measures regarding terrorism taken by Spanish lawmakers during that period were: Organic Law 7/2003 that reformed the system of punishment and its enforcement in general. The system of punishment for crimes of terrorism was toughened, establishing the full and effective enforcement of sanctions (Cfr. Organic Law 7/2003 of 30 June, on reform measures for the full and effective enforcement of sanctions); Organic Law 5/2010 of 22 June amended the CC and provided a profound reorganisation and clarification of the criminal treatment of terrorist acts, including the actual creation, integration or participation in terrorist organisations or groups, and also incorporated a number of new elements in the line with the obligations outlined in Framework Decision 2008/919/JHA. In addition, CC Art. 130.4 declared that no statute of limitations would be applied to crimes of terrorism in cases resulting in the death of a person (See Organic Law 5/2010 of 22 June, amending the Criminal Code); Organic Law 3/2011 of 28 January, by which Organic Law 5/1985 of 19 June on the General Electoral System was amended. Paragraph 4 of Article 44 stated that political parties, federations or coalitions of parties, and groups of voters may not submit candidatures that, in fact, continue or follow the activity of a political party that has been judicially declared unlawful and has been dissolved or suspended.

[45]

Arteta A. ¿Qué víctimas? ¿Qué Justicia? In: Cuesta C, Alonso R, Eds. Las víctimas del terrorismo en el discurso político. Miguel Ángel Blanco Foundation. Madrid: Editorial Dilex 2007; p. 85.

[46]

See Organic Law 6/2002 of 27 June, the Law on Political Parties.

[47]

The banning of Batasuna and Herri Batasuna was upheld by the Ruling of the European Court of Human Rights on 30 June, 2009, (Herri Batasuna and Batasuna vs. Spain, Ruling Nº. 25803/04 and 25817/04).

[48]

For more on violent Basque nationalism see Mata JM. El nacionalismo radical vasco: discurso, organización y expresiones. Bilbao: University of the Basque Country-Servicio Editorial 1993. For more on moderate nationalism see Elorza A. La hora de Euskadi: artículos y ensayos. Barcelona: Galaxia Gutenberg 2003. See also Fusi JP. El País Vasco, pluralismo y nacionalidad. Madrid: Alianza Editorial 1990; and Juaristi J. Historia mínima del País Vasco. Madrid: Turner 2013. On the doctrine of nationalism. Cfr. Del Real Alcalá JA. Nacionalismo e identidades colectivas: la disputa de los intelectuales (1762-1936). Madrid: Dykinson 2007; pp. 358 and ff. On current problems which reveal the different nationalisms in Spain Cfr. Real Alcalá JA, Ed. Unidad y pluralidad en tiempos revueltos: derechos, Constitución, secesión. Foreword by Javier Ansuátegui Roig. Madrid: Dykinson and Canada

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Foundation 2014. [49]

Royal Decree 2317/2004, of 17 December, via which the High Commission for Support for Victims of Terrorism was created.

[50]

Royal Decree 991/2006, of 8 September, on the basic organic structure of the Ministry of the Interior.

[51]

Organic Law 2/2012 of 22 April, on Budgetary Stability and Financial Sustainability.

[52]

Law 29/2011, of 22 September, on the Recognition and Integral Protection for Victims of Terrorism unanimously adopted by Parliament on 22 September, 2011 was implemented by Royal Decree 671/ 2013, of 6 September, 2013.

[53]

According to Art. 20 of Law 29/2011 “The State shall assume an extraordinary payment of appropriate compensation, imposed by a conviction by way of civil liability for the commission any of the crimes within the scope of this Law”. According to the Law of Solidarity, as seen in the main text of this section, the State, taking charge of compensation for the principle of civil liability, resolved the difference in treatment among victims whose right to compensation was recognised by a conviction and those whose perpetrators had not yet been convicted. Thus, in numerous meetings of the Collective of Victims of Terrorism of the Basque Country (Covite) with the General Directorate for Support to Victims of Terrorism this disparity in their treatment was highlighted. Their criticism grew harsher following the adoption of the Royal Decree 671/ 2013, of 6 September, 2013, which implemented measures established by 29/2011 Law on Recognition and Integral Protection for Victims of Terrorism. See Covite pide cambios en la protección de las víctimas del terrorismo. Abc 2013 12 December.

[54]

The Royal Decree 671/ 2013, of 6 September, 2013, which implemented measures established by 29/2011 Law on Recognition and Integral Protection for Victims of Terrorism provided that the amount of compensation awarded in the case of death by an act of terrorism would be €250,000, an amount that would be increased by a fixed amount of 20 monthly payments, corresponding to the date of the terrorist act and in view of each of the children or minors who depended economically on the victim at the time of their death (Art. 7). The amount of compensation for personal harm was established as follows: a) Serious disability: 500,000 Euros; b) Absolute, permanent disability: 180,000 Euros; c) Total, permanent disability: 100,000 Euros; d) Partial, permanent disability: 75,000 Euros (Art. 10).

[55]

Cfr. Rodríguez Uribes JM. cit. (see reference no. 34), pp. 108 and ff.

[56]

As the Basque Autonomous Community is where most acts of terrorism have occurred in Spain, compensation for material damage caused by acts of terrorism had already been established by the Basque Government in Decree 221/1988.

[57]

See Rodríguez Uribes JM. cit. (see reference no. 34), pp. 107-108.

[58]

According to CC Art. 578 on the “the exaltation or justification, by any means of public expression or dissemination, of crimes of terrorism or terrorist organisations or those who participate in its execution, or carry out acts that involve discredit, contempt or humiliation of victims of terrorist crimes or their families, shall be punished and imprisoned for 1-2 years.”.

[59]

The National Court Office for Assistance to Victims of Terrorism (OIAVT) was created by the Ministry of Justice in 2006, 2 years after the terrible attacks of 11 March, 2004 in Madrid. With the enactment of Law 29/2011 on the Recognition and Integral Protection of Victims of Terrorism it included, for the first time, the creation of the Office which was provided with a set of minimum functions. These functions that were developed de facto since 2006 were, in essence, to inform victims about their legal procedures, establish channels to obtain information about the prison conditions of those convicted, guide them on and accompany them to trials, ensuring at all times the safety of the victims of terrorism at said acts. In recent years, and closely linked to the function of offering information to victims, the Office has carried out important research on summary proceedings of terrorist attacks over 25 years old that covers locating, identifying, recompiling and recreating them to the extent possible. In addition, it set up an electronic office for victims of terrorism for them to obtain online information in real time about their proceedings without having to go to the National Court

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itself. See “Un espacio de acogida para las víctimas del terrorismo en la Audiencia Nacional” (A Place of Shelter for Victims of Terrorism at the Nacional Court), Fundación, n. 44, September 2013, p. 1415. [60]

The Memorial Centre for Victims of Terrorism based in Victoria (the Basque Country) was inaugurated on 24 March, 2015, by Prime Minister Mariano Rajoy as a place of tribute and remembrance, and its main raison d'être is to tell a true account of terrorism. Historians, archivists and researchers working on the phenomenon of terrorism will thus play a leading role at the Centre. It will also seek the involvement and collaboration of the education sector, in particular for the dynamic role for the dissemination of democratic values ​that the Centre can represent for students. To make this possible, it has had two fundamental sources of support: firstly, the essential contribution of victims of terrorism themselves; and secondly, the objective, expert, qualified and multidisciplinary inclusive advice of a Commission of Experts that has produced a report including a wide range of proposals. See “Presentación del Centro Memorial de las Víctimas del Terrorismo” (The Presentation of the Memorial Centre for Victims of Terrorism), Fundación, Journal of the Victims of Terrorism Foundation, n. 50/2015, pp. 17.

[61]

Alonso R, Serranò A. The needs of victims of terrorism in Spain. In: Lynch O, Argomaniz J, Eds. Victims of Terrorism. A Comparative and Interdisciplinary Study. London: Routledge 2015; pp. 90106.

PART VI POOR PEOPLE

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CHAPTER 12

Employment and Poverty: The Case of ‘Working Poor’ José Luis Rey Pérez* Faculty of Law, Pontifical University of Comillas, Madrid, Spain Abstract: Traditionally employment was the best instrument to fight against poverty and social exclusion. This explains that the right to work had been included in the Universal Declaration of Human Rights of 1948 and in some constitutions. Right to work has been interpreted as right to a job and a duty for all citizens. However, one of the consequences of the economic crisis started in 2008 has been the precarization of working conditions. In this context appears the phenomena of working poor, people who have a job but they do not earn enough money to cover their basic needs. In this chapter, the phenomenon of working poor will be studied from the perspective of human rights and a new interpretation of the right to work will be proposed in the sense that work is a wider concept than jobs. Some possible political responses to working poverty will also be studied. The phenomenon of working poor is understood as negation of the right to work and the human right to live with dignity

Keywords: Labour rights, Poverty, Right to work, Salaries, Working conditions, Working poor. 1. WHAT ARE WORKING POOR? THE COMPLEXITY OF A SIMPLE CONCEPT The existence of working poor is not new. In the United States, the first academic studies about this topic were published in the 70s, and in the 90s it was the topic analyzed in detail by sociologists. However, in Europe it seemed to be something strange due to the European social protection compared to the absence of workers’ rights in the US [1]. And although the case of working poor appeared in Europe with the new century, the financial crisis that started in 2008, has caused the increase of working poverty due in part to new labour regulations that have increased the flexibility and have meant the disappearance of many social policies Corresponding author José Luis Rey Pérez: Pontifical University of Comillas, Madrid, Spain; Tel: 0034 915422800 ext. 2808; Fax: 0034 915414836; E-mail: [email protected] This work is part of a Research Project titled: “Sostenibilidad económica del Estado de Bienestar en España: nuevas estrategias de financiación de las políticas sociales) (DER2011-23543) financed by the Spanish Minister of Economy and Competitiveness. *

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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that had been typical in the European model. Nowadays, and maybe as always occurred except in the decades after II War World and only in Europe, having a job and a salary do not mean not being poor. This situation means a change in the social model characteristic of the European Welfare States. The European Welfare model was built over employment as the main social link. Regardless of the different types of Welfare States, the position of labour versus capital in them, and the different levels of women integration in labour markets, the full citizenship only existed when people were employed and were part of the labour market. Social integration and employment worked as synonyms and to be out of the labour market was only allowed to ill, old or handicapped people and also to young people that were studying. As a consequence, employment was the spine of societies and the best guarantee against poverty and social exclusion. This model has not finished yet. In fact, when structural unemployment appears in Europe in the different economic crisis of the 70s, 80s and 90s, all the policies were addressed to extend the job offers in order to prevent poverty and scarcity. The neoliberal narrative explains that unemployment is due to an excessive labour market regulation that gives markets excessive rigidity and prevents their adaptation to different and rapidly changing economic conditions. Flexibility has become the key concept of all the new regulations: external flexibility to make easier hiring and firing and make labour market more dynamic; internal flexibility in order to get an organization of work and the day breaks adapted to the demands of the market and not to the worker's needs; and wage flexibility to adapt salaries to market conditions so they do not be over the equilibrium point. We can conclude that working poor appeared when labour markets increase their flexibility. In other words, the price we have paid for maintaining the narrow link between social insertion and employment is less quality of jobs; having a job is not enough to be not poor. The contradiction is that the policies adopted to maintain that link have broken it. There is not a clear definition and concept about what a working poor is. In fact we can find different definitions that make difficult to make comparisons about regions and countries. In the European context, working poor is one person who have been working at least seven months of the last year and his total household income is less than 60% of the median income for the country [2]. However, there are different definitions in other countries. In United States, for example, working poor are persons who spent at least 27 weeks [in the past year] in the labour force (that is, working or looking for work), but whose incomes fell below the official poverty level, that is established as a minimum budget [3]. International Labour

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Organization (ILO) defines working poor as those who have been working at least one hour the previous week and poverty is defined in accordance with World Bank as less than one or two dollars per day and per person [4]. Therefore, we have not a definition of working poor to make global comparisons. We can ask if the definitions are correct when many people who work only a few months during the year or they don´t have full time jobs is correct in order to measure working poverty when flexibility is very high and that means an increasing instability in jobs and salaries [5]. In any case, we can conclude that there are increasing figures of working poverty in the world. Following the figures offered by ILO, in 2011 85% of poor people were working [6]. The concept of working poverty is difficult because it has two components: firstly, the individual situation of the worker in the labour market and secondly the situation of her household. This makes that when we examine working poverty the situations can be different: there are people with scarce salaries that however their households’ income is high or people with a stable labour position that however are poor due to the incomes of their households when there are members that have no incomes. These two elements, the individual that is related to the position of the worker and the quality of her job, and the social one, the household, have to be combined when we examine the social policies available. For example, free social services or income policies can be a solution for working poverty but each one affects only one side of the problem. This means that when we try to design policies all the aspects have to be studied because maybe each one demands a different solution. Therefore we can conclude that working poverty is a difficult and complex concept that takes into account different elements that sometimes is difficult to quantify; however working poverty is easy to understand because it describes the situation of those people who although have a job – a permanent job or a temporary one- they do not have enough resources to cover their basic needs and the needs of their families. In Spain, for example, the number of working poor has grown with the economic crisis due to different reasons. Firstly, because during the years of economic growth –from 1996 to 2007- the employment created was of bad quality, basically temporary jobs, not high skilled and with low salaries [7]. This explains that although the high employment rates and the growth of the BIP, poor and inequality rates didn´t reduce [8]. Secondly, the economic growth of those years was not used to expand the Welfare State. Between 2004 and 2007, public spending in social protection grew weakly (from a 20,3% to a 20,7% of BIP) and public spending in education remained permanent (4,3% of BIP) [9]. As a consequence the growth of working poorness has been very fast compared to

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other European countries when the economic crisis started: in 2012 12,3% of employed people were poor. This means that Spain is the third country with highest working poverty rates in the EU, while Romania (19,5%) is the first one and Greece the second one (15, 1%) [10]. In Spain the reasons that explain these rates are different. Firstly, we find the type of jobs. Self-employed people in a situation of poverty were 35,5% in 2012 [11]. This happens in the entire EU, where self-employed people have a risk three times higher than salaried workers to become poor [12]. The reason is that the economic crisis has affected mainly the small business that in addition they do not have any social protection against the consequences of the crisis. Secondly, the temporary employment presents higher poverty rates due to worse working conditions and less social protection compared to full time employment. This explains that poverty rate of temporary employment is 8 points higher than poorness rates of full time employment [13]. These figures show the precarity of employment in Spain, especially of temporary jobs, and they show too that this employment is not voluntary because it has important consequences for the quality of life, especially for women who are who mainly have this type of jobs [14]. Temporality is strongly associated with working poverty. Spain is one of the countries with highest rates of temporary jobs. In fact, although the figures known in 2015 shows creation of employment, the majority of jobs that are being created are temporary. In 2012 people with permanent jobs that were poor were 5,4% while people with temporary jobs that were poor were 16,2% [15]. Temporary jobs show the precarity of our labour market. In consequence, anyone with a temporary job is a potential working poor, especially when the duration of the contracts is two or three months. Lastly, we can point out other factors that explain working poverty like the education level or the age if we take into account the high unemployment rate among young people or among elder people. The second group of reasons that explain working poverty are related to the households. As we have explained earlier, working poverty rates take into account the situation of the household where it appears. Sometimes the situation of poverty is partially relieved thanks to the solidarity of the family. This solidarity helps to solve difficult situations but also mean more scarcity for those who have to share their resources. Households with only one adult, especially when she is a woman, are the ones that have greater risk to be in poverty. However, households with two adults, where both of them are employed although with not high salaries are at lower risk to be poor. Other important aspect to have into account is the number of children in the household. Households with only one adult with children are at higher risk of poverty and also when there are many children and the salaries of the adults are not very high. These situations explain the high

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children poverty rate that, for example, exist in Spain where one of each four children is poor and where 10% of children are severe poor. As the last FOESSA Report explains, “the economic situation of the children that was worrying due to the differences between rich and poor children, with the economic crisis has worsened. The children are fragmented in groups due to the economic situation of the families where they live and these differences can become permanent in our society. Spain is one of the countries of UE27 where children suffer higher levels of economic vulnerability. Only Bulgaria and Romania have higher children poverty rates. This situation is due to a very weak social protection system for children, where there are not universal grants for children and with very little financial support for children” [16]. Thirdly, working poverty has a third component that is the existence or not of generous social policies that help to mitigate the effects of labour precarity. If, as is the case of Spain, these policies are very weak, the households with scarce salaries and with children have not enough incomes to cover the basic needs. As it will be argue later, strong social policies are a good instrument to fight against working poverty. The absence of social policies force many women to be at home without being able to incorporate to labour market reducing the incomes of the households: the possibility of a household to offer work is inversely proportional to the care work, especially when the salary is scarce [17]. 2. RIGHT TO WORK AND WORKING POVERTY The case of working poor force us to reflect about the meaning and the sense of the right to work. As it is known, this right has been recognised by the Universal Declaration of Human Rights (1948) and it has been also included in some constitutions. The right to work traditionally has been interpreted as a right to a job, as a right to access to labour market and to a job through it people obtain the incomes necessary to survive. If we interpret the right to work with this meaning then it was logical to build social integration over labour relations. Today this link does not work due, at least, to two reasons. Firstly because access to labour market is not guaranteed to everybody. With unemployment rates in some countries of 25%, the right to a job is one of the weakest rights of the Universal Declaration. These high unemployment rates are structural so it is not easy to eliminate them. We have to think, in consequence, to build social cohesion over something different to employment. In second place, the deterioration of labour conditions, with worse and precarious jobs, make that jobs are not the way to obtain incomes to survive. As working poverty is increasing, it is evident that the job centred model will not work anymore and that labour market cannot achieve the objective of social insertion. The right to a job depends now of market criteria, where market imposes its rules, so it loses its sense as human right that tries to

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protect human dignity. The dignity of a woman or a man who has a job and although she or he is poor is attacked. Poverty is probably one of the most serious violations of human rights. In consequence, all this means that we have to eliminate the right to work of the list of human rights because it is a right that we cannot satisfy? [18]. From my point of view, we have to interpret the meaning of the right to work. Work is a wider concept than employment. Work is all activity where a person uses her intellectual and physical capabilities and through them mediately or immediately interacts with the society. Jobs are only part of those activities, those ones that are valued by market. There are much more works than jobs and the objective of social rights is decommodify some values and some goods. When we recognize the right to work, we want to decommodify the value of social integration and social cohesion; we are protecting all those activities that create an added value for societies. And these activities sometimes are not valued by the market but they contribute to the society [19]. Because probably, care work provides much more to society than the work of a person dedicated to financial speculation. We have to maintain the right to work in the group of human rights but it is necessary to understand correctly the moral value that it protects and it is required to look for ways to guarantee it, to avoid, for example, working poverty. 3. POLITICAL RESPONSES TO WORKING POOR Working poverty demands solutions. Solutions different from the neoliberal policies which are the ones that have created the phenomena of working poor in a global economy that looks for the competitiveness reducing salaries. One of the possible solutions is a complement of the salary paid by the State to those households with lower salaries in order to achieve they arrive to the poverty line. The State would pay the difference between the salary received by the worker and the income established by the poverty line. However, from my point of view, this solution neither is fair nor adequate. The working poverty problem is a justice problem because companies are paying a salary that is not fair. Very low compared with the needed to live with dignity. If the State pays the difference, that would be a capital subsidy in order capital to avoid paying fair wages. So finally is the society who is paying what it is a responsibility of companies. This is certainly unfair and does not solve the problem. Moreover, it perpetuates it. Companies knowing that the State will pay the difference will devalue the salaries. This response does not go against the origin and the causes of working poverty, only acts over some of its consequences [20]. As it has been explained earlier, working poverty is a complex phenomenon with many components. In consequence, the solution has to combine different type of

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policies with the objective to assure the dignity of workers. In contemporary labour markets there is a duality between those who a have a quality and permanent job and those ones who have bad quality, temporary jobs with poor salaries. Guy Standing calls this last group “precariat” [21]. Many of the workers of precariat are working poor. One of the objectives of policies might be eliminate this dualization that breaks the integrative role that work used to have. The labour reforms done in the last years did not have the purpose to eliminate the dualization of labour market, improving the labour conditions of workers with bad quality jobs, the purpose was reduce the group of workers with good working conditions and labour rights: nowadays, the standard labour relation is precarious. It is, at least, for the new generations of workers –women, young and immigrantswho have entered in the labour market in the 90s [22]. The reforms have reduced the protection with the purpose to make more competitive the labour market. And the consequences are known: the number of working poor has increased and it will continue growing. Therefore, the reforms to be done must be the opposite. It is necessary to create quality jobs, jobs with rights, with enough salaries. This cannot be done in the short term. Quality employment exists in those economic sectors that require some specialization and qualification. Here education plays an important role: it is necessary to adopt education policies that give workers the necessary capabilities in those economic sectors that in medium term will become critical and they will need workforce. The way does not consist on giving general training to unemployed but design an economic plan that in the medium term creates qualified and specialized jobs. In consequence, education is the first policy required to fight against working poverty. The second policy is to raise the minimum wage. In the countries where there are more working poor the minimum wage is lower. For example, if we compare Spain with other European countries, we find that minimum wage is quite lower. Following Eurostat, the minimum wage in Spain in 2015 was 756,70 Euros (in 12 payments), while in France was 1457,52, in Belgium 1501,82 or in United Kingdom 1378,87. The IMF has recommended Spain reducing the minimum wage, but that policy would increase the number of working poor. Increasing the minimum wage is the way to achieve that salaries were enough to cover basic needs and were fair. In addition, many academic studies have demonstrated that minimum wage do not have negative consequences in the number of jobs [23]. So, an adequate policy to reduce working poverty seems to be to increase the minimum wage. In addition, it is possible to establish different minimum wages in accordance to the age of the workers. In many countries there is a lower minimum wage for younger workers, for example those ones who are not 28 years old. If we take into account the youth unemployment and that many of working poor are

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young, this differentiated minimum wage could be a good policy that would stimulate recruitment of young people with no working experience. This policy would have positive consequences over consumption and over worker´s productivity that in medium term would create more jobs. The third policy necessary to fight against working poverty is to develop generous social policies. As it has been explained earlier, working poverty take into account the global incomes of the households. In consequence, sometimes poverty is not due to the salary of the worker but to the structure of the household. Only with social policies in those cases the poverty can disappear. The absence of social policies obliges many women to stay at home occupied in care work. If there are generous social policies to take care of elderly, handicapped people and children, more women could access to labour market and contribute with her incomes to cover the needs of the household. This would also help to reduce children poverty. This implies give income support to families with children in order to help families with the costs of taking care, feeding and dressing children. In this sense it is necessary free public education from the birth of children and also the development of public services for handicapped and elder people with residences and social workers. 4. CONCLUSION Working poverty is one of the consequences of neoliberal policies and the reforms adopted as response to the economic crisis of 2008. It is not an inevitable or random phenomenon. It is the consequence of political decisions which purpose is reduce the working conditions and the quality of jobs and perpetuate poverty. Poverty is one of the main attacks against human rights. Working poverty goes against the logic of the right to work, although we understand it as the right to a job, and it breaks the social contract. A decent society cannot have poverty but a society cannot be decent without any doubt if condemn workers to poverty because their wages are not enough to cover their basic needs. The solution to working poverty is opposite to the policies adopted in the last years. The solution requires to combine different measures: education plans oriented to give specialization to workers, the increase of minimum salary and the development of social policies that help to increase the incomes of households and to help them with all the care work. If we maintain precarity, if we maintain the working poverty, in the medium term we will have a problem of poverty among elderly people. In poor societies, human rights can be recognised in rules or in the Constitution, but they have been eliminated in the reality.

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CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1] However, in the 70s some researches in France showed that poverty not always was linked to unemployment: Stoleru L. Vaincre la pauvreté dans les pays riches. París: Flammarion 1977. [2] Marx I, Nolan B. Trabajadores pobres. Papeles de Economía Española 2013; 135: 101. [3] Cal ML de la. La pobreza laboral. Boletín de Recursos de Información 2014; 40: 2. [4] Cal, ML. de la. La pobreza laboral. Boletín de Recursos de Información 2014; 40: 2-3. [5] Cal, ML. de la. La pobreza laboral. Boletín de Recursos de Información 2014; 40: 3. [6] Fields GS. Poverty and Low Earnings in the Developing World. Cornell: ILR School-Cornell Univesity 2011. [7] Rocha F, Aragón J, Cruces J. Cambios productivos y empleo en España. Madrid: Ministerio de Trabajo e Inmigración 2008. [8] VI Informe sobre exclusión y desarrollo social en España 2008. Madrid: Fundación FOESSA 2008. [9] Aragón J, Cruces J, De la Fuente L, Martínez A, Otaegui A. Trabajadores pobres y empobrecimiento en España. Zerbitzuan 2012; 52: 122. [10] Pobreza y trabajadores pobres en España. Informe 2014. Madrid: Fundación 1º de Mayo 2014: 19. [11] Pobreza y trabajadores pobres en España. Informe 2014. Madrid: Fundación 1º de Mayo 2014: 21. [12] Working Poors in Europe. Dublín: European Foundation for the Improvement of Living and Working Conditions 2010: 9. [13] Pobreza y trabajadores pobres en España. Informe 2014. Madrid: Fundación 1º de Mayo 2014: 24. [14] Aragón J, Cruces J, De la Fuente L, Martínez A, Otaegui A. Trabajadores pobres y empobrecimiento en España. Zerbitzuan 2012; 52: 123. [15] Pobreza y trabajadores pobres en España. Informe 2014. Madrid: Fundación 1º de Mayo 2014: 22. [16] VI Informe sobre exclusión y desarrollo social en España 2008. Madrid: Fundación FOESSA 2008: 82. [17] García Espejo I, Ibáñez Pascual M. Los trabajadores pobres y los bajos salarios en España: un análisis de los factores familiares y laborales asociados a las distintas situaciones de pobreza. Empiria. Revista de Metodología de Ciencias Sociales, 2007; 14: 56. [18] Peces-Barba G. El socialismo y el derecho al trabajo. Sistema, 1990; 97: 3-10. [19] Rey Pérez, JL. El derecho al trabajo y el ingreso básico. ¿Cómo garantizar el derecho al trabajo? Madrid: Dykinson 2007. [20] Cal, ML de la. La pobreza laboral. Boletín de Recursos de Información 2014; 40: 9. [21] Standing G. The Precariat. The New Dangerous Class. Londres: Bloomsbury 2011.

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[22] Zubero I. ¿A qué huele en Dinamarca? Lan Harremanak 2008; 16: 39. [23] González Güemes I, Pérez Domínguez C. El efecto de las regulaciones salariales sobre el empleo. In: Boletín Económico del ICE 2000; 2640: 37-43.

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CHAPTER 13

Fundamental Rights, National Constitutions and the European Treaties: Social Rights vs Economic Rights Silvio Gambino* and Julio Pinheiro Faro Homem de Siqueira* 1 2

Faculty of Law, University of Calabria, Cosenza, Italy Researcher at the Department of Public Law, Federal University of Rio Grande do Norte, Brazil Abstract: This paper analyses the emergence of fundamental social rights in the European integration process. As the initial design of the European Union was not for a European society, such rights have emerged slowly. Analysing some European Court of Justice case law, this paper reaches some conclusions about issues of fundamental rights for shaping European rule of law. Firstly, it is necessary to observe the provisions of the European Charter of Fundamental Rights, other European treaties clauses, national constitutional provisions, and the national and European courts case law. Secondly, it is necessary to observe the common constitutional traditions of the member states. Thirdly, the European Court of Justice has constitutional competence, and must maintain a dialogue with the other Courts. Finally, there seems to be a kind of European constitutional judicial review emerging, underlining the necessity of new rules and a more adequate judicial protection of fundamental rights in the European Union.

Keywords: Case law, Constitutionalism, Economic rights, European Charter of Fundamental Rights, European Court of Justice, European Integration Process, European treaties, European Union, Fundamental rights, Social rights. 1. PRELIMINARY REMARKS This paper analyses the emergence of fundamental social rights in the recent evolution of the European integration process. It demonstrates how they are protected within the European Charter of Fundamental Rights, which has the same legal value as the other European treaties. Since the founding fathers of the European Union did not intend to construct a European society, such rights emerged only slowly in the evolution of the European Community, from the * Corresponding author Silvio Gambino: Senior Professor of Italian and Comparative Constitutional Law, University of Calabria, Cosenza, Italy; Tel: 0039 0984/4922121; Fax: 0039 0984/492508; E-mail: [email protected] Julio Pinheiro Faro Homem de Siqueira: Researcher at the Department of Public Law, Federal University of Rio Grande do Norte, Brazil; Tel: +552230543235; E-mail: [email protected]

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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European primary law until the above mentioned Charter. Regarding this issue, and analysing some European Court of Justice case laws, this paper reaches some conclusions about issues of fundamental rights for shaping the rule of law. Two aspects are noticed and analysed: firstly, the provisions of the Charter, other European treaties clauses and national constitutions, and the national courts and European Courts case law are observed; secondly, the common constitutional traditions of the member states, regarding the European constitutionalization process are also analysed. From these two observations, the paper concludes that the European Court of Justice has constitutional competence, and must maintain a dialogue between the other, national, supranational and international Courts. From such a perspective, this work concludes that there seems to be a kind of European constitutional judicial review emerging, underlining the necessity of new rules and a more adequate judicial protection of fundamental rights in the European Union. 2. COMMON CONSTITUTIONAL TRADITIONS, SOCIAL RIGHTS AND EUROPEAN INTEGRATION Social constitutionalism has endorsed new concepts for liberty, equality and democracy. In other words, a new form of state has emerged. This kind of constitutionalism has established social rights as a new constitutive condition of the constitutional principle of equality [1], that is, substantive equality, which requires an active subsidiary role of the Republic [2]. In this way, one could question if it is possible to talk about constitutional traditions, which are common to all the European Union member states. From the rulings it has handed down since the early 1970s [3], the European Court of Justice (ECJ) has underlined that fundamental rights [4] constitute an essence of the general principles identified through ECJ case law. Thus, in terms of social rights, there is no constitutional tradition common to all the European Union member states. Comparative analysis shows that social rights have attained recognition both through specific provisions contained in the constitution and/or in primary legislation. Generally, European constitutions do not provide safeguards for all social rights, but these are recognised according to different standards, reflecting the political and cultural traditions of the European Union member states in question. There is no common constitutional tradition in terms of social rights constituting an ideal-type of post-war European constitutionalism. Constitutional reforms in some European Union member states (for instance Italy) and political and legal debates that have emerged from the amendment of the regional statutes of autonomy in others (such as Spain and, again, Italy) have shed light onto a central issue: the allocation of powers in the area of civil and social

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rights. The division of legislative and executive branches at the various layers of government and the “essential performance levels”, to use the term adopted in Italy after the constitutional amendment of 2001, are of particular importance. For reasons of brevity it is not possible to specifically address this issue herein, although one ought to do so when analysing the enforceability of fundamental social rights in the light of cultural traditions and national political-constitutional identities, “inclusive of regional and local self-government”. There is an open debate with regard to the possible dispute of jurisdiction between the central government and the sub-state entities. In a comparative analysis, taking into account well established and recent themes of EU law, it must be underlined that, in practice, Constitutional Courts (CC) in unitary states as well in federal ones, rather than Parliaments, are entrusted with the task of guaranteeing both the legal/economic unity principle and the protection of social and civil rights. This occurs because regional legislation and/or administrative acts are more likely to violate the principle of inter-territorial equality of citizens (and of individuals in general). This paper analyses social rights in the light of the recent evolution of the European integration process and their codification in the European Charter of Fundamental Rights (ECFR), which now has the same legal value as the European treaties. Firstly, we must observe how slowly such rights have emerged in the evolution of European primary law from their appearance within policies implemented by the European Economic Community (EEC) up to their codification in a Charter that aims at becoming the Bill of Rights of a common European constitutionalism [5]. The process of European integration, which started in the early 1950s, was mainly for economic purposes, to support the shaping and development of a European common market. The “Founding Fathers” of the EU did not have the aim of reaching a higher “level of sociality” within Europe, limiting their objective to eliminating “disparity of treatment which had the tendency to hinder the correct functioning of the market” [6]. The “silence” of the early treaties with regard to social rights was first interrupted with the audacious ECJ case law in the early 1970s. Mainly through the treaties of Amsterdam and Nice, from the mid-1990s, this case law was codified in primary law and thus the recognition of social rights as defined by the European Social Charter (1961) and the Community Charter of the Fundamental Social Rights of Workers (1989) was achieved (albeit within the provisions of “European social politics”). Probably, the Founding Fathers put too much trust in the selfpropulsive role of the market and its capacity to create suitable social conditions in favour of cohesion and social and economic integration.

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Analysed from a legal-constitutional profile, social rights clash – at least up until the Treaty of Lisbon – with their original meaning and their legal-constitutional status [7] in contemporary constitutional systems in Europe. With a disputable approach, some scholars have even talked about social rights in function of the needs of competitiveness of the European common market and economic development. With the Lisbon Treaty [8], there is, evidently, a codification of classical fundamental rights, both through the provisions of the ECFR and the safeguards of fundamental rights provided for by the European Convention on Human Rights (ECHR), which are part of the general principles of EU law. However, not only is there this, there is also the protection of rights provided for by individual provisions contained in the treaties. From this perspective, it is indisputable that the rights, freedoms and principles of the ECFR are interpreted according to the general provisions of Title VII of the ECFR, by giving due regard to the explanatory notes in the ECFR itself. In this framework, article 53 of the ECFR constitutes a balance in identifying the highest parameter for the protection of the individuals. It is without doubt that one cannot truly compare the safeguards provided for by the ECFR with those of national constitutions and related systems of judicial review [9]. This becomes quite clear when one analyses the relationship between social rights and the market. For now, one can affirm that the new treaties have codified fundamental rights, but the catalogues of such rights do not correspond to those contained in national constitutions. Moreover, with regard to national constitutions, the ECFR has no fundamental principles that can be used as hermeneutical criteria by the courts when balancing the different forms of protection provided for in terms of European fundamental rights. As a result, these rights are all considered equally fundamental and the need to find a necessary balance is left up to the judge of each individual case, through a principle of proportionality which some scholars have rather convincingly defined as “invertebrate” [10]. Even in the light of the new provisions on social rights contained in the new treaties, weak forms of protection of social rights still exist. Indeed, article 151 of the Treaty on the Functioning of the EU (TFEU) provides that both the Union and the European Union member states must consider those social rights set out in the European Social Charter (1961) and in the Community Charter of the Fundamental Social Rights of Workers (1989) as fundamental. Moreover, as provided for in the second subparagraph of article 151, both Union and European Union member states “shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union’s economy”. In this way, the European legal framework remains rooted to a very slow

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evolution of EU law towards development and cohesion policies that are compatible with social rights. The protection of such rights requires a debate on whether – in the case of conflicting situations – national constitutional law or European Union primary law prevails. Regarding the role of the European judicial system and the effectiveness of social rights, legal scholars and, in particular, labour law experts have, for some time, stressed that some social rights are experiencing an “infiltration” by competition law and the market which is significantly altering their nature.[11] In brief, the “new” treaties show that there are still weak forms of social rights protection and, in any case, only limited comparison is possible between with European traditions and constitutional provisions. The framework, therefore, was and is still rooted in a very slow institutional and political evolution of the EU towards development and cohesion policies which are compatible with rights, in particular social rights. As a first conclusion, one might underline that on the matter of equality article 20 of the ECFR fundamentally represents a significant regression both with regard to the constitutional debate and the much higher protection ensured by contemporary European social constitutions. Then, much more importance must be given to the ECJ and the ECHR. In the development of their case law, the European courts, above all the ECJ, might be able to give a new and more significant impulse to fundamental rights, which now appear more understandable in the light of the new parameters on fundamental rights recognised by the ECFR. It has to be said that the ECJ has already offered clear evidence of such a balance between economic needs and social rights, in its case law on the prohibition of discrimination (gender equality), as well as in cases relating to the protection of workers (public social security, paid holidays, collective negotiation, etc.) [12]. As various scholars have underlined [13], unlike the first generation of rights, social rights protection is only indirect and potential, being only relevant as far as they relate to public interests and the implementation of specific EU policies. The EU regulatory framework on social rights raises many doubts: their regulation in specific legal situations; the possibility of extending the nature of inviolable rights for them, considering them supreme constituent principles of the democratic system; and their actual justiciability. Indeed, the central question in this framework is the nature and the relative regulatory contents of fundamental principles, from which this framework derives. Within such a framework lies the question of whether a connection between the principle of formal equality and that of substantive equality exists, as is the case in the more advanced, common constitutional traditions of the European Union member states [14]. At the same time, another question arises, which is to know if EU social rights, (especially) as

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recognised by the ECFR, are limited to the endorsement and the implementation of the equality principle [15], understood as the prohibition of discrimination between individuals, or if they also include the right to substantive equality, which is at the basis of post-war European constitutionalism. This implies bringing into the picture the issue on financial resources and, therefore, the existence of a power of the EU that does not prejudice the constitutional competence of each member state. As previously underlined, contrary to what is enshrined in the original European liberal democratic constitutions, and in those derived from post-second world war constitutionalism (liberal socio-democratic constitutions), the original objectives of the treaties had neither a statement of a general principle of equality nor provisions of a general principle of prohibition of discrimination, other than that relating to nationality. It was the ECJ that identified equality as a species of the EU law general principles genus, drawing from the constitutional traditions common to the European Union member states, to which the Court itself resorted in order to protect fundamental EU rights [16]. It seems very important to try to highlight the contribution of European constitutional heritage in the development of EU law principles, and with them a set of community parameters established by the ECJ. Despites its great scientific interest, the contribution that such case law can give to national constitutional case law has received little analysis. This occurs because, from many points of view, national constitutional case law seems to have limited its attention to the prohibition of discrimination as set out in article 3(1) of the Italian Constitution, as can be observed in the constitutional case law regarding the prohibition of discrimination on the access to elective office. 3. SOCIAL RIGHTS AND THE MARKET: PROTECTION OF THE RIGHT TO WORK IN EU LAW, ECJ CASE LAW AND NATIONAL CONSTITUTIONS Returning to the matter of jurisdiction [17], and to the effectiveness of judiciary protection of the individuals’ legal demands, recent developments in the European integration process (and the future of European law) are likely to bring further improvement in the judicial system, as well as, almost inevitably, a new leading role for both the ECJ and the national courts. This role may be expressed in two levels. The ascending one, in which the national courts, and now even the CC, go to the ECJ as the instrument of “reference for preliminary ruling”, for new and more complex provisions. The descending one, with reference to the nonapplication of national law when this is contrary to EU law, now comprised of both provisions aimed at protecting rights and provisions which set “principles”.

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As for the relationship between EU law and national law – and, in such a framework, the non-application of national law contrasting with the EU law on rights – it seems that there are no serious doubts: established well settled case law is available on this matter. From the cases Van Gend en Loos [18] and Costa v. Enel [19] onwards, the primacy and direct applicability of EU law over national law are well established principles, identifiable as (fully achieved) EU acquis. As for the issue of the full legal force of EU primary law in the case of contrast with national law, the Italian Constitutional Court (ICC) considers that the national court can proceed with non-application of the contrasting provisions, without having to question their constitutional legitimacy due to violation of Article 11 of the Italian Constitution. Within this framework, the Internationale Handelsgesellschaft [20] and the Tanja Kreil [21] cases deserve mention. More recently, the Omega [22] and Schmidberger [23] cases established that due to the nature (of fundamental legal values) of human dignity and freedom of expression and assembly that these are parameters to explain limitations to fundamental freedoms laid down in the treaties (specifically the restriction to the freedom of providing services and the free movements of goods). Due to the issue decided by the ECJ in the Omega case (if the restriction to the freedom to provide services based on the protection of fundamental rights enshrined in the national constitution – that is to say the protection of human dignity – is compatible with EU law), the Court did not hesitate to rule two things. Firstly, that “the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law. There can therefore be no doubt that the objective of protecting human dignity is compatible with Community law, it being immaterial in that respect that, in Germany, the principle of respect for human dignity has a particular status as an independent fundamental right”. Secondly, that “the prohibition on the commercial exploitation of games involving the simulation of acts of violence against persons, in particular the representation of acts of homicide, corresponds to the level of protection of human dignity which the national constitution seeks to guarantee in the territory of the Federal Republic of Germany. It should also be noted that, by prohibiting only the variant of the laser game the object of which is to fire on human targets and thus ‘play at killing’ people, the contested order did not go beyond what is necessary in order to attain the objective pursued by the competent national authorities”. In the light of such an analysis, one must examine in depth the relationship between the constitutional traditions that are common to the European Union member states, particularly specific provisions for the protection of fundamental

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rights (especially the right to strike and the right to collective bargaining as fundamental social rights) and EU statute and case law. This analysis is carried out by referring to some recent cases decided by the ECJ, which case law establishes a clear asymmetry between economic freedoms and social rights as established by the safeguards ensured by the principles and provisions of EU law and by the provisions of the national constitutions. Indeed, article 4 of the “new” EU treaties provides that the EU shall respect such constitutional traditions. Within the framework of this ECJ case law, some cases, already analysed in depth by many constitutional and labour law scholars, are worth mentioning: Viking [24], Laval [25], Rüffert, [26] and European Commission v. Federal Republic of Germany [27]. In turn, these cases highlight a trend in European constitutionalism towards the “judicialization” of constitutional law, in a perspective that looks more like a common law rather than a civil law system. Then, one should pose the question of whether, with regard to the balance between labour law, competition law and freedom of establishment, the task of interpreting the concepts and safeguards provided for in the European treaties and the national constitutions are only constructions of the ECJ. There is also the issue of whether the ECFR and its use as a parameter by the ECJ would entail a negative interpretation of the protection of rights such as the right to strike, trade union rights, and the right to collective bargaining contained in the national constitutions. A negative interpretation could be possible according to articles 52 and 53 of the ECFR according to a concept of multilevel constitutionalism set out therein. Indeed, the individuals can choose the procedural and the substantive instruments for safeguarding their rights. These provisions could force the Constitutional Courts of European Union member states to use the “counter-limits” safeguard used for the protection of national, political and constitutional identities. Considering then the asymmetry between tradition and constitutional safeguards of the European Union member states and the safeguards of the EU primary law, some Italian scholars have identified that a similar asymmetry between the safeguards of economic freedoms accepted by the treaties and fundamental social rights finds an implicit limit in the ECFR and its proposed innovative classification of rights into categories of values [28]. In the absence of a balance between the aims pursued by the Laeken Convention and by the “new” treaties today, the safeguards of the ECFR that put all fundamental rights on the same level only constitute an “apparent progress” with respect to the provisions of the previous treaties. The practical and theoretical consequence of this is that the texts with constitutional value (such as Constitutions and Charters) will no longer draw a gradation between rights or identify prevailing principles in the constitutional order. Then it will not be

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necessary to create a balance between rights, once each one is at the same time equally fundamental; thus, there will be a “free” balance, whose terms will be defined by the judge himself case by case [29]. Consequently, the EU law surrenders to an “inner law”, referring then to a problematic balance between values [30], which is resolved by means of dialogue between the ECJ and the national courts. This then assigns to the courts the decisive role of determining rights on the basis of the principle of “proportionality”, a proportionality which is considered, however, invertebrate, because it can be used without legal provisions that guide the judge [31]. This asymmetry between the legal parameter and the judicial protection of fundamental social rights in both the national and the EU systems has inevitably drawn the attention of constitutionalists to the limits of this, which should be opposed to the presumed full-fledged primacy of EU law. By ruling that the national judge who refers to the ECJ for a preliminary ruling should ensure that the strike is proportionate with respect to the right to establishment, the ECJ has directly ruled on the subject matter of the case, rather than looking for a balance between the national constitutional and EU provisions (see in particular the Viking case). In this way, the ECJ has a penetrating original control over the national judge on the strategies of the trade union fight pragmatically pursued by the social partners in conflict [32]. There is a clear risk that by means of the principle of proportionality, a reformulation of the right to strike takes place in collective disputes within the legal orders, such as Italy, in which such a principle does not exist (at least in the private sector) [33]. Most Italian labour law scholars talk about a degradation of the constitutional right to strike (guaranteed by article 40 of the Italian Constitution) to the level of a mere “interest”, which deserves protection if it does not exceed the narrow limits imposed on its exercise by the principles of adequacy and proportionality [34]. Critically evaluating the ECJ case law from the balance between EU economic freedoms and social rights guaranteed by national constitutions, according to the EU Treaty and the ECFR, there is a logical error in this case law since it does not consider social rights on the same level of human rights (see Omega and Schmidberger cases). Furthermore, what emerges from the examined cases (Viking, Laval, Rüffert) is not so much a lack of recognition of the right to strike but rather the balance that EU law has established between the right to strike and the right to establishment. This balance degrades the effectiveness of constitutional safeguards recognised by the right of collective bargaining, guaranteed by article 28 of the ECFR.

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4. CONCLUDING REMARKS: JUDICIAL PROTECTION OF FUNDAMENTAL RIGHTS IN NATIONAL CONSTITUTIONS AND EUROPEAN TREATIES This all said, one must pose the question of what the national courts have to do when dealing with fundamental principles and rights of the EU. If one examines existing law (articles 51, 52 and 53 of the ECFR), these principles and rights ought to be the object of a reference for a preliminary ruling and they could be a parameter for interpreting the acts subject to its scrutiny (“consistent interpretation of community law”). In this context, fundamental questions arise, as originated from the intersection between the way EU law and the constitutional law of each European Union member state treats fundamental rights and principles (see, inter alia, bio-law and the right to establish a family), being regulated by the principle of constitutional rigidity and by the judicial review. For this reason, on the one hand, the ECJ must protect the law in the interpretation and in the implementation of European treaties and, on the other hand, the judges of the European Union member states must ensure an effective judicial protection in the areas governed by EU law. Moreover, in the framework of the “horizontal clauses”, national laws and practices shall also be fully taken into account (article 52(6) of the ECFR). This issue seems to be under the provision of the ECFR on “the level of protection” of rights (article 53). According to this clause, nothing in the ECFR shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by EU law and international law and by international agreements to which the EU and all the European Union member states are party. This includes not only European Union member states constitutions, but also the European Convention for the Protection of Human Rights and Fundamental Freedoms. Regarding the identification of the extent and the level of protection of fundamental rights of the EU, there is one observation. They must be identified and protected to the highest standards pro individuo and with preference for the constitutional safeguards ensured by each European Union member state, and obviously with preference for the EU parameter whenever new rights are dealt with, as well as for the ECHR and the relevant case law of the Strasbourg court. The role of the national courts is in the interstices of these two legal systems. Whenever the evaluation of the provision employed in the resolution of a given case observes an alleged violation of fundamental principles and rights of the constitution, the procedure shall involve the CC. Pending an evolution of its current case law in relation to cases of “double preliminary ruling of the community and constitutional judges” [35], the CC shall analyse the merit of the

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referred question regardless of whether the EU provision has direct effect or not. If the provision is not included in existing constitutional parameters and constitutional case law, the national court can either go to the ECJ through the preliminary ruling procedure or through the resolution of the case with a consistent interpretation of the provisions of the treaties. This opens a completely new horizon in the EU judicial review, in constitutional issues. However, judicial review of constitutional issues may suffer elusions due to the strong role recognised to the ordinary courts [36]. Then, we may draw some concluding remarks. The central issue, regarding the legal strength given to the general provisions of the ECFR, remains on the relationship, at EU level, between the protection of fundamental rights, the other European constitutional provisions, and the “common constitutional traditions” of the European Union member states. Moreover, there is another issue, closely linked to the European Union member states common constitutional traditions as to whether an EU judicial review on constitutional issues about “ordinary” normative acts is provided for or not. Undoubtedly, such a judicial review is the symptom of a process of European constitutionalization that, although still incomplete, goes as far as the “counter-limits” that can be invoked at national level. So, “this seems to be the moment in which a true constitution emerges: as long as there is no judge who can use the Constitution to challenge the legality of another act, even a legislative one, the document is a mere political enunciation; it becomes a legal document when such a review is possible” [37]. Therefore, there is no doubt that the ECJ has a constitutional competence. Within a single jurisdiction, its competences may be confused with the competences on merits and legality (of EU acts with regard to the EU law). The “relationship between different formulations of the same rights and between the different jurisdictions over the same rights” is an open issue, and particularly the relationship between the ECJ, national constitutional courts and the European Court of Human Rights (ECHR). This may lead to contrasting judgments handed down by the different courts when implementing EU law and the European Convention. Regarding these issues, we can observe that the proposed amendments to the treaties in order to guarantee the effective protection of rights within the European legal area (included in the new treaties by means of the legal technique by which the Charter has the same legal value of the treaties) appear problematic. Inevitably, the ECJ would be called upon to safeguard the ECFR, which now becomes pleno iure law of the EU, but it would not be reasonable (or desirable) to confer such a task to the Strasbourg court, or to an ad hoc Court, a kind of second “European Court”, as some eminent scholars have suggested. A number of

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elements would hinder this task and the new provisions of the Treaty would not add any real guarantee of improvement. Considering the national courts, distinguished scholars have already discussed whether the new order of fundamental rights of the EU would authorise these judges not to apply a national provision that conflicts with that of the EU in the area of fundamental rights. In this way, a new form of EU judicial review of constitutional issues will emerge, “which will certainly increase as judges and lawyers in the different countries realise a full cultural improvement which will allow them to better use these techniques that have, until now, been little known” [38]. In Italy, such an eventuality has recently been reinforced by, among other things, the amendment of article 117 of the Constitution. There is still uncertainty and ambiguity about judicial protection of rights and the relationship between the Courts. Such authoritative legal scholarship demonstrates the persistent regulatory deficit in terms of the scrutiny of EU acts and the insufficiency of remedies to protect fundamental rights and the “new” treaties do not seem to have made much progress in this sense. These considerations underline, once again, the necessity of new rules and of a more adequate judicial protection of fundamental rights in the EU. The safeguard of such rights must include the constitutions and, therefore, the treaties must have political legitimacy. In conclusion, we must stress that when one talks of these rights and the Constitution within the EU framework it implies posing a series of questions with regard to the nature of European integration itself. In other words, one must go beyond the functionalist approach that has characterised the process until now, by redefining the EU sources of legitimization and by consolidating its founding values. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1] See Cheli E. Classificazione e protezione dei diritti economici e sociali nella Costituzione italiana. In: Scritti in onore di L. Mengoni. Le ragioni del diritto. Milan: 1995; Caretti P. I diritti fondamentali. Libertà e diritti sociali. Turin: 2002; Salazar C. Dal riconoscimento alla garanzia dei diritti sociali. Turin: 2000); Pérez Luño A.-E. Los derechos sociales y su significación actual. In: Zapatero V, Garrido MI, Coord. Los derechos sociales como una exigencia de justicia. Alcalá de Henares: 2009; Sarlet IW. A eficácia dos direitos fundamentais:uma teoria geral dos direitos fundamentais na perspectiva constitucional. Porto Alegre: 2009.

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[2] Bobbio N. Sui diritti sociali. In: Neppi Modona G, Ed. Cinquant’anni di Repubblica italiana. Turin: 1997); Zagrebelsky G. Il diritto mite. Turin: 1992; Dogliani M. Interpretazioni della Costituzione at 316. Milan: 1982. [3] De Vergottini G. Tradizioni costituzionali comuni e Costituzione europea. In: De Vergottini G, et al. Identità europea e tutela dei diritti. Costituzione per l’Europa e interesse nazionale. Catanzaro: 2005. [4] Panunzio S. I diritti fondamentali e le Corti in Europa. Naples: 2005; Cartabia M, Ed. I diritti in azione. Universalità e pluralismo dei diritti fondamentali nelle Corti europee. Bologna: 2007; Pinelli C. I diritti fondamentali in Europa tra politica e giurisprudenza, 2008; Zanon N, Ed. Le Corti dell’integrazione europea e la Corte costituzionale italiana. Naples: 2006; G. Gerbasi, L’Europa delle corti e i diritti fondamentali. Una prospettiva costituzional-comparatistica (Cosenza, 2012); T. Giovannetti, L’Europa dei diritti. La funzione giurisdizionale nell’integrazione comunitaria (Turin, 2009); V. Sciarabba, Tra fonti e Corti. Diritti e principi fondamentali in Europa: profili costituzionali e comparati degli sviluppi sovranazionali (Padova, 2008); G. Martinico, L’integrazione silente. La funzione interpretativa della Corte di Giustizia e il diritto costituzionale europeo (Naples, 2009); O. Pollicino, ‘Corti europee e allargamento dell’Europa: evoluzioni giurisprudenziali e riflessi ordinamentali, (2009) 1 Dir. Un. Eur.; O. Pollicino, V. Sciarabba, ‘La Corte di Giustizia dell’Unione europea e la Corte europea dei diritti dell’uomo quali Corti costituzionali’, in L. Mezzetti (ed), Sistemi e modelli di giustizia costituzionale (Padova, 2011, t. II); M. Cartabia, B. de Witte, P. Pérez Tremps (ed), Constitución europea y Constituciones nacionales (Valencia, 2005); V. Onida, ‘I diritti fondamentali nel Trattato di Lisbona’ and T. Gropi, ‘I diritti fondamentali in Europa e la giurisprudenza multilivello’, in E. Paciotti (ed), I diritti fondamentali in Europa, (Roma, 2011); F. Sorrentino, ‘La tutela dei diritti fondamentali nell’ordinamento comunitario e in quello italiano’, in S. Bartole et al (Atti XIX Convegno nazionale dell’A.I.C.), Annuario 2004. La tutela multilivello dei diritti, (Padova, 2008); F. Fontanelli, G. Martinico, P. Carrozza (eds.), Shaping rule of law through dialogue: international and supranational experiences (Groningen, 2010); S. Gambino, ‘Costituzionalismo multilevel, diritti fondamentali e Unione Europea’, in G. D’Ignazio (ed), Multilevel constitutionalism tra integrazione europea e riforme degli ordinamenti decentrati (Milan, 2011); J. P. Faro, ‘The challenge of multilevel democratic dialogue for shaping the rule of law’, (2011) 198 RePro. [5] See Gambino S. Stato e diritti sociali. Naples: 2009; Gambino S. Diritti fondamentali, costituzioni nazionali e trattati comunitari. In: Gambino S, Ed. Trattato che adotta una Costituzione per l’Europa, Costituzioni nazionali, diritti fondamentali. Milan: 2006; Gambino S. La Carta e le corti costituzionali. Controlimiti e protezione equivalente. In: Bronzini G, Piccone V, Eds. La Carta e le corti. Taranto: 2007; Ruggeri A. Rapporti tra Corte costituzionale e Corti europee, bilanciamenti interordinamentali e ‘controlimiti’ mobili, a garanzia dei diritti fondamentali. Rivista AIC 2011: 1; Ruggeri A. Trattato costituzionale, europeizzazione dei “controlimiti” e tecniche di risoluzione delle antinomie tra diritto comunitario e diritto interno. Available from www.forumcostituzionale.it; Celotto A. Groppi T. Diritto UE e diritto nazionale: primauté vs controlimiti. Riv. It. Dir. Pub. Com. 2004; Celotto A. Primauté e controlimiti nel Trattato di Lisbona. In: Scritti sul processo costituente europeo. Naples: 2009; Balaguer Callejón F. El derecho constitucional europeo y la Unión Europea. In: Balaguer Callejón F, Ed. Introducción al derecho constitucional. Madrid: 2011.

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[6] Among the Union and international scholars, see Villani U. Tutela dei diritti fondamentali nel ‘dialogo’ fra corte europee e giudici nazionali. In: Moccia L, Ed. Diritti fondamentali e cittadinanza dell’Unione Europea. Milan: 2010; E. Cannizzaro, ‘Diritti ‘diretti’ e diritti ‘indiretti’. I diritti fondamentali tra Unione, CEDU e Costituzione’, in Il diritto dell’Unione europea (Milan, 2012); G. Strozzi, ‘La tutela dei diritti fondamentali tre diritto comunitario e ordinamento degli Stati membri’, in Scritti degli allievi in memoria di Giuseppe Barile (Padova, 1995); G. Gaja, ‘Aspetti problematici della tutela dei diritti fondamentali nell’ordinamento comunitario’, (1998) Rivista di diritto internazionale; G. Tesauro, ‘Il ruolo della Corte di giustizia nell’elaborazione dei principi generali dell’ordinamentoe europeo e dei diritti fondamentali’, in Annuario 1999. La costituzione europea (Padova, 2000); A. Tizzano, ‘Introduzione’ a L. Moccia (ed), Diritti fondamentali...cit.; A. Tizzano, ‘Ancora sui rapporti fra Corti europee: principi comunitari e c.d. controlimiti costituzionali’, (2007) 3 Il diritto dell’Unione europea; L. Daniele, ‘Carta dei diritti fondamentale dell’Unione europea e Trattato di Lisbona’, in Liber Fausto Pocar (Milano, 2009); L. S. Rossi, ‘How Fundamental Are Fundamental Principles? Primacy of the Eu Law, Principles of National Constitutions and Fundamental Rights after Lisbon’, in Liber Fausto Pocar (Milano, 2009); R. Mastroianni, ‘Diritti dell’uomo e libertà economiche fondamentali nell’equilibrio dell’Unione europea: nuovi equilibri?’, (2011) 2 Il diritto dell’Unione europea; J. Ziller, ‘Il nuovo assetto dei diritti nei trattati europei dopo Lisbona’, (2011) 1 La cittadinanza europea; N. Parisi, ‘Funzione e ruolo della Carta dei diritti fondamentali nel sistema delle fonti alla luce del Trattato di Lisbona’, (2009) 3 Il diritto dell’Unione europea. [7] See Iliopoulos Strangas J, Ed. La protection des droits sociaux fondamentaux dans les États membres de l’Union européenne. Athens-Brussels-Baden-Baden: 2000; Flauss FF, Flauss JF, Eds. Droits sociaux et droit européen. Bilan et perspectives de la protection normative. Brussels: 2002; VVAA. La protection des droits sociaux fondamentaux en Europe par la Charte sociale européenne. Strasbourg: 2001; Giubboni S. Diritti sociali e mercato. La dimensione sociale dell’integrazione europea. Bologna: 2003; S. Giubboni, Diritti e solidarietà in Europa (Bologna, 2012); S. Giubboni, ‘I diritti sociali fondamentali nell’ordinamento comunitario. Una rilettura alla luce della Carta di Nizza’, (2003) 2-3 Il diritto dell’U.E.; B. Caruso, ‘I diritti sociali fondamentali nell’ordinamento costituzionale europeo’, in S. Sciarra, B. Caruso (eds), Il lavoro subordinato (Turin, 2006); C. Salazar, ‘I diritti sociali nella Carta dei diriti fondamentali dell’U.E.: un ‘viaggio al termine della notte’?’, in G. Ferrari (ed), I diritti fondamentali dopo la Carta di Nizza. Il costituzionalismo dei diritti (Milan, 2001); G. Bronzini, ‘Il modello sociale europeo’, in F. Bassanini, G. Tiberi (eds), Le nuove istituzioni europee. Commento al nuovo Trattato europeo (Bologna, 2008). [8] See Luciani M. Il Bundesverfassungsgericht e le prospettive dell’integrazione europea. Available from www.astrid.eu; Chiti M. Am Deutschen Volke. Prime note sulla sentenza del BundesVerfassungsGericht del 30 giugno 2009 sul Trattato di Lisbona e la sua attuazione in Germania. Available from www.astrid-online.it; Guarino G.. La sentenza del Bundesverfassungsgericht del 30 giugno 2009. Sulla costituzionalità del Trattato di Lisbona e i suoi effetti sulla costruzione dell’Unione europea’, in www.astrid-online.it; L. S. Rossi, ‘Integrazione europea al capolinea?’, www.affariinternazionali.it; V. Baldini, ‘Il rispetto dell’identità costituzionale quale contrappeso al processo d’integrazione europea. (La ‘sentenza Lisbona’ del Bundesverfassungsgericht ed i limiti ad uno sviluppo secundum Constitutionem dell’ordinamento sopranazionale)’, (2010) Rivista AIC; A. Cantaro, ‘Democrazia e identità costituzionale nel Lissabon Urteil. L’integrazione protetta’, (2010) Teoria e diritto dello Stato; B. Guastaferro, ‘Il rispetto delle identità nazionali nel Trattato di Lisbona tra riserva di competenze statali e ‘controlimiti europeizzati”, in www.forumcostituzionale.it; M. Raveraira, ‘L’ordinamento dell’Unione europea, le identità costituzionali nazionali e i diritti fondamentali. Quale tutela dei diritti sociali dopo il Trattato di Lisbona ?’, in (2011) 2 Rivista del diritto della sicurezza sociale; M.-C. Ponthoreau, ‘Identité constitutionnelle et clause européenne d’identité nationale. L’Europe à l’épreuve des identités constitutionnelles nationales’, (2007) IV Diritto pubblico comparato ed europeo.

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[9] See Ruggeri A. Tradizioni costituzionali comuni e controlimiti, tra teoria delle fonti e teoria della interpretazione. In: Falzea P, Spadaro A, Ventura L, Eds. La Corte costituzionale e le Corti. Turin: 2003; Ruggeri A. Trattato costituzionale, europeizzazione dei controlimiti… cit.; Celotto A, Groppi T. Diritto U.E. e diritto nazionale…cit.; A. Celotto, T. Groppi, ‘Primauté e controlimiti… cit.; M. Cartabia, A. Celotto, ‘La giustizia costituzionale dopo Nizza’, (2002) Giur. cost.; F. Salmoni, ‘La Corte costituzionale, la Corte di Giustizia delle Comunità Europee e la tutela dei diritti fondamentali’, in P. Falzea, A. Spadaro, L. Ventura (eds), La Corte costituzionale e le Corti… cit.; G. Azzariti, ‘La Carta dei diritti fondamentali dell’Unione europea nel processo costituente europeo’, (2002) Rass. dir. pub. eur.; V. Onida, ‘Armonia tra diversi e problemi aperti. La giurisprudenza costituzionale sui rapporti tra ordinamento interno e ordinamento comunitario’, (2003) Quad. cost.; A. Celotto, ‘La primauté nel Trattato di Lisbona’, in A. Lucarelli, A. Patroni Griffi (eds), Dal Trattato costituzionale al Trattato di Lisbona. Nuovi studi sulla Costituzione europea (Naples, 2009); A. Randazzo, ‘La teoria dei controlimiti riletta alla luce del Trattato di Lisbona: un futuro non diverso dal presente?’, in www.diritticomparati.it; M. Raveraira, ‘L’ordinamento dell’Unione europea… cit., at 347; B. Guastaferro, ‘Il rispetto delle identità nazionali nel Trattato di Lisbona tra riserva di competenze statali e ‘controlimiti europeizzati”, in www.forumcostituzionale.it; A. Schillaci, ‘L’art. 4.2 del Tue e l’europeizzazione dei controlimiti’, (paper Granada, 2010, VII Jornadas sobre la Constitucion europea. El Tratado del Lisboa); A. Cantaro, ‘Democrazia e identità costituzionale nel Lissabon Urteil. L’integrazione protetta’, (2010) Teoria e diritto dello Stato 20; A. Ruggeri, ‘Trattato costituzionale, europeizzazione dei controlimiti e… cit. [10] See Azzariti G. Le garanzie del lavoro tra costituzioni nazionali. Carta dei diritti e Corte di Giustizia dell’Unione Europea. In: Scritti in onore di Alessandro Pace. Naples: 2012; Azzariti G. Il futuro dei diritti fondamentali nell’era della globalizzazione. Pol. dir. 2003; 3. [11] See Giubboni S. I diritti sociali fondamentali… cit.; D’Aloia A. Diritti sociali e politiche di eguaglianza nel processo costituzionale europeo. In: Scudiero M. Il diritto costituzionale comune europeo. Naples: 2002. [12] See the judgment of the Court of Justice of 21 September 1999 in Case 67/96 Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-5751; see judgment of the Court of Justice in Case 173/99, The Queen v Secretary of State for Trade and Industry ex parte BECTU [2001] ECR I-4881. See also Iliopoulos-Strangas J. La Charte des droits fondamentaux… cit.; Barbera M. Dopo Amsterdam: i nuovi confini del diritto sociale comunitario. Brescia: 2000; Giubboni S. Libertà di mercato e cittadinananza sociale europea. In: Bronzini G, et al, Eds. Le prospettive del welfare in Europa. Rome: 2007. [13] See Allegretti U. I diritti sociali. Available from www.luiss.it. [14] See Azzariti G. Uguaglianza e solidarietà nella Carta dei diritti di Nizza. In: Siclari M, Ed. Contributi allo studio della Carta dei diritti fondamentali dell’Unione europea, at. 71. Turin: 2003. [15] See Pollicino O. Di cosa parliamo quando parliamo di uguaglianza? Un tentativo di problematizzazione del dibattito interno alla luce dell’esperienza sopranazionale. Available from www.forumcostituzionale.it; V. Onida, ‘L’eguaglianza ed il principio di non discriminazione’, in www.luiss.it; Saccomanno A. Eguaglianza sostanziale e diritti sociali nel rapporto fra ordinamento interno e ordinamento comunitario. In: Gambino S. Costituzione italiana e diritto comunitario. Milan: 2002. [16] See the judgment of the Court of Justice in Case 106/83 Sermide SPA v. Cassa Conguaglio Zucchero et al., [1984] ECR 4209; Case 283/83 Racke [1984] ECR 3791; Case 15/95 EARL [1997] ECR I1961. See, in the same logic, the opinion of Advocate General Van Gerven in Case 146/91 Koinopraxia Enoseon Georgikon Synetairismon Diacheir iseos Enchorion Proionton Syn. PE (KYDEP) v Commission [1994] ECR I-4199.

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[17] See Gambino S. Giurisdizione e Giustizia fra Trattato di Lisbona, CEDU e ordinamenti nazionali. La cittadinanza europea 2010: 1-2. [18] Case 26/62, [1963] ECR 1. [19] Case 6/64, [1964] ECR 585. [20] Case 11/70, [1970] ECR 1125 . [21] Case 285/9, [2000] ECR I–69. [22] Case 36/02, [2004] ECR 1-9609. [23] Case 112/2000, [2003] ECR I-5659. [24] Case 438/05, [2007] ECR I-10779 . [25] Case 341/05, [2007] ECR I-11767. [26] Case 346/06, [2008] ECR I-1989 . [27] Case 271/08, [2010] ECR I–7087. [28] See Azzariti G. Le garanzie del lavoro tra costituzioni… cit., at 8. [29] See Azzariti G. Le garanzie del lavoro tra costituzioni… cit., at 5. [30] See Azzariti G. Le garanzie del lavoro tra costituzioni… cit., at 9. [31] See Azzariti G. Le garanzie del lavoro tra costituzioni… cit., at 9-10. [32] See Giubboni S. Dopo Viking, Laval e Rüffert: in cerca di un nuovo equilibrio fra i diritti sociali e mercato. In: Andreoni A, Veneziani B. Libertà economiche e diritti sociali nell’Unione Europea. Dopo le sentenze Laval, Viking, Rüffert e Lussemburgo, at 123 (Rome, 2009). [33] See Orlandini G. Autonomia collettiva e libertà economiche nell’ordinamento europeo: alla ricerca dell’equilibrio perduto in un mercato aperto e in libera concorrenza’, (2008) Giornale di diritto del lavoro e di relazioni industriali 281. [34] See Giubboni S. Dopo Viking, Laval e Rüffert… cit., at 124; Caruso B. Diritti sociali e libertà economiche sono compatibili nello spazio europeo? In: Andreoni A, Veneziani B. Libertà economiche e diritti sociali… cit., at 111. [35] See Cartabia M. Considerazioni sulla posizione del giudice comune di fronte a casi di doppia pregiudizialità comunitaria e costituzionale. Foro it 1997; 222; Barbera A. Corte costituzionale e giudici di fronte ai ‘vincoli comunitari’: una ridefinizione dei confini? Quaderni costituzionali 2007: 2. [36] See Barbera A. Le tre Corti e la tutela multilivello dei diritti’, in P. Bilancia, E. de Marco, La tutela multilivello dei diritti, at 9. Milan: 2005; Barbera A. Nuovi diritti: attenzione ai confini. In: Califano L, Ed. Corte costituzionale e diritti fondamentali,at 19 ff. Turin: 2004. [37] See Onida V. Il problema della giurisdizione. In: Paciotti E, Ed. La Costituzione europea... cit.. [38] See Pizzorusso A. Una Costituzione ‘ottriata’. In: Paciotti E, Ed. La Costituzione europea… cit., at 39.

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CHAPTER 14

Right to Housing: Between its Implementation and its Mere Declaration Boris Wilson Arias López* Constitutional Court of Bolivia, Sucre, Bolivia Abstract: In this chapter, the right to housing and its enforceability will be discussed, excluding the analysis of the enforcement of rights, economic, social and cultural rights and then the law on the subject will be discussed. Finally, I observe the right to housing in the context of freedom of contract.

Keywords: Economic, Enforceability, Right to housing, Social and Cultural rights. 1. INTRODUCTION The crisis of the real state agencies originated in the United States with high risked mortgages (Subprime Credit) directed to debtors with low solvency who could not pay, it generated one of the greatest financial crisis in the history of this country, with the following fall of the constructions which causes unemployment and the bankruptcy of different banks and Real State Agencies; moreover, there are other problems such as the lack of houses due to natural disastersearthquakes, hurricanes, etc.- the victims of forced movements due to armed conflicts- ex. Colombia- the migration from the countryside to the cities due to the lack of jobs and poverty, these are the main reasons why millions of people end up without a home or with houses that do not follow the minimum standards in the subject. It is clear that housing leads to social cohesion and the opposite generates residential segregation between the poor neighbors and the rich neighbors mainly in the cities, nationals and immigrants, in this last case to deepen the vulnerability in front of the home owners for reasons of language, customs, the access to justice, emphasizing that nowadays the only location of a house can lead to Corresponding author Silvio Gambino: “Letrado” at Constitutional Court of Bolivia, Sucre, Bolivia; Tel: (+591) 72561268; E-mail: [email protected] *

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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discriminatory processes, to the point that the social promotion is identified with the change of a home, focusing on the ones who do not own a house, aspect that is considered a factor of social exclusion. Furthermore, the right to own a house is related to the transgression of the property right and the rules of urbanization- ex. cities that grow within this anomie-, so this way the overcrowding, the noise, the abandon, the lack of basic services affect the development of the children and their capacity of acquiring, developing inferiority feelings, besides other rights are violated such as the right to free development of the personality, intimacy and definitely the right to freedom; so that: “the lack of proper housing threatens to mental and physical health, while housing leads to the enjoyment and exercise of other rights, such as the right to education, to health, the free development of the personality, also the right to choose residency, right to privacy and familiar life and, similarly, it makes it possible for people to carry out certain requirements such as to have a home where to be located” [1]. Even more, today it is urgent that the satisfaction of the right to housing harmonizes with the right to clean environment referring to the materials used in the constructions- so this can be biodegradable and the houses can use clean energy- concerning to the growth and the expansion of the cities which generate deforestation, waste and so on. In this context, the current work starting from the essential configuration of the right to housing, analyses some considerations concerning its enforceability and implementation. 2. RIGHT TO HOUSING The right to housing is well known in the international context for the big number of International Treaties and soft law, for example, The Universal Declaration on Human Rights (1948) [2]); The International Covenant on Economic, Social and Cultural Rights (1966) [3]; International Convention on the Elimination of All Forms of Racial Discrimination (1965) [4]; The Convention on the Elimination of All Forms of Discrimination against Women (1979) [5]; Convention on the Rights of the Child (1989) [6]; International Covenant on Civil and Political Rights (1966) [7], International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) [8]; Convention relating to the Status of Refugees (1951) [9]; The Recommendation No. 115 of the OIT (1961) [10]; Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989) [11]; Convention 117 - Social Policy of the OIT (1962) [12], The Committee on the Rights of Persons with Disabilities (2006) [13], American Convention on Human Rights “Pact of San Jose, Costa Rica”

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(1969) [14], The Declaration on the Right to Development (1986) [15], the basic principles and guidelines concerning evictions and displacements originated by the development, formulated according to the mandate of the special teller about appropriate housing, The Principles about the Return of the Homes and the Heritage of the Refugees and the displaced people denominated the “Pinheiro Principles” (2005), in fact there has been organized two world summits about human settlements, the Conference of Vancouver, denominated Hábitat I from 05/31/1976 to 06/11/1976 and the conference of Istanbul or Hábitat II from 06/03/96 to 06/14/96. For some people the right to housing does not have autonomy, and they mention that it comes out from other rights such as the dignity, the intimate, and the freedom, which is why it has not been established in The International Covenant on Economic, Social and Cultural Rights, but as a component of the right to life according to art. 11.1 that clearly mentions “The States Parties to the present Covenant recognize everyone’s right to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”; however, the doctrine states that the right to housing has full autonomy, as a right with its own content related to the rest of the rights. The right to housing covers the physical place where the people and families live and this develops another term “house”, so this way The General Observation No. 4 of the Committee of Economic, Social, and Cultural Rights stands: “The Committee suggests that State Parties do not interpret the right to housing in an strict or restrictive manner such as “the fact of having a roof over the head o (…) or as a conformity. However, it should be considered as a right to living in security, peace, and dignity”, and concerning the concept of “adequate housing” at least they should follow the following specifications: 1. Legal Security in the property of the land and a house which can be individual, collective, and communal, with the condition that it needs to have social function emphasizing on the rights of the women. There should be concerned that the right to housing is not synonym to the right to property. In fact, the possession of the house can be the result of usufruct; rental, etc. In general, it should be legally protected so that it will not result in harassment, illegal evictions, etc. Concerning the to the establishment of the indigenous, the Inter-American Commission on Human Rights’ Resolution of August 31st 2001, in the case Mayagna (Sumo) Awas Tingni Community a/ Nicaragua, referring to the concessions that benefit to an enterprise to exploit 62000 has of jungle, the mentioned resolution recognized the collective property of the jungle to the

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indigenous community, expressing: “As the result of the customs, the possession of the land should be enough so the indigenous communities that do not have the property documents of the land, should obtain the official recognition over the land and its later property registration”, while the resolution of June 15th 2005 in the case Moiwana a/ Suriname, about the attack to the community by the army, case in which the survivors could not get back their lands and follow their traditional life, the resolution stated that: “The State has neither established the conditions nor foreseen the mechanisms for the communities to return to their traditional lands in a secure way and with dignity, emphasizing that these communities depend on their land and they are especially close to it.” At the same time the African Commission on Human Rights was aware of two NGO’s sue, one of Nigeria (Action Center of ESCR) and another American (Center for the ESCR) by the Ogony peoples who live in the delta of Niger River, oil producer region, whose soil has been polluted by the Anglo-Dutch Shell and Nigerian National Oil Company. The protests of the peoples were repressed by the army, even though these peoples stated that the State should compensate all the damages to the right to housing. In this context the reflections made by Hernando De Soto, who pointed out that poor people cannot produce profit since they have precarious property. In fact, the lack of the documentation that can support their own property which does not allow them for example to mortgage their properties and this way they can have access to loans, so that the regularization of the right to housing would go with the economic growth [16], recognizing that today the documents about property over the land provide security to farmers, increase its value, encourages public and private inversions, although the limitations about its theory should be recognized, emphasizing that the causes of poverty cannot be reduced to the informality of the right to property, this vision cannot be applied to the indigenous people and the only right to property does not enable a bank loan, but mainly people must have the ability to pay the debt. 2. An adequate housing is related to the availability of basic services such as drinking water, sewerage, electricity, domestic gas, telecommunications, and transportation. 3. The expenses that homes require should be affordable so that way the house cannot affect other basic necessities. 4. The habitability, so this way the house can protect to the people from cold, diseases, etc. In fact, a house is not livable when it does not adequate to the necessities of the handicapped which causes promiscuity, lacking public electricity, and/or lack of natural illumination; it lets the access of external sounds and/or bad smells. The European Tribunal on Human Rights, for example, through its Resolution

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of December 9th, 1994 in the case López Ostra a/ España, determined that the function of the plant waste treatment constructed with public subsidy, but it had malfunctions which started to release gases, smoke, and bad smell causing problems to the people who lived near, establishing that “a serious pollution to the environment can affect to the welfare of a person and prevent him enjoyment of the house; even more, it attacks its private and familiar life without risking his health…”. While in the case Moreno Gómez a/ España, referring to a person who lived in a residential area of Valencia where some pubs, discos, were established, the sound caused by this new pubs caused trouble among neighbors. The European Tribunal on Human Rights stated that the violations to the right to housing not only were visible or material, but also incorporeal or intangible aggressions such as sounds, emissions, smells, etc. The State did not adopt concrete mechanisms in order to avoid the violations to the rights of the people who lived in the area. 5. The accessibility to own a home mainly in vulnerable groups among them young ones as result of their parents’ divorce, handicapped people, victims of natural disasters, displaced ones, sick people, women mainly the ones who suffer family violence, maids, street vendors, etc. Referring to the women, the house should allow them the exercise of their right to privacy and it should be secure enough. According to the General Observation No 7 of the Committee on Economic, Social, and Cultural Rights the ignorance of such requisites can lead to sexual aggressions and the lack of housing and the fear to lose one can cause familiar violence. In this sense, “The women’s rights to possess and have a land under their names are intrinsically connected to the rights of exercising their individual freedom” [17]. 6. The localization of the house so that they cannot be exposed to landslides, volcanoes, earthquakes, tsunamis, polluted areas, dangerous places, etc. Nonetheless, these places should have access to parks, public transportation, waste recollection, schools and jobs, aspects that are connected to the obligation of the State to decentralize the public administration, departing mainly from the idea that not everyone can live in the downtown part of the city. 7. Cultural Adaptation Finally, the General Observation No. 4 of the Committee on Economic, Social, and Cultural Rights stated that it is important that the civil society takes part of the design of public policies concerning housing so that the public policies can be sustainable, participative, equitable, and productive.

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3. ENFORCEABILITY OF THE ECONOMIC, SOCIAL, AND CULTURAL RIGHTS (ESCR) AND RIGHT TO HOUSING Duguit made a difference between mandatory and directive (pragmatic norms), which nature is not jurisdictional, but merely indicative since it requires to follow all the legislative procedure, from which the economic, social, and cultural rights would be “undetermined judicial concepts”, because it is the law maker the one who determines its content and effects so this way “…. The specific difference of the social rights seems to appear in the way that its objective is determined: the State is in charge of the provision, and the way it is taken when there is violation to these rights. All of fundamental rights have undetermined objective, but the kind of indetermination is different from one another. In the social rights the indetermination comes out when the provision does not clearly establish how the law is accomplished. As a consequence, it does not appear specified what is constitutionally contrary to what the law demands. In other words, it does not appear how much the social right is violated. This peculiar indetermination of the objective does not appear the same way in the rights to freedom, since in this last ones the proper behavior is an abstention and the constitutionally contrary to the right is any type of behavior…” [18], following this concept if the guarantees are considered to implement the rights, the economic, social, and cultural rights would be laws without guarantees. Furthermore, it is stated that in the economic, social, and cultural rights is the law maker who chooses the mechanisms to implement the law, with enough discretion, so that the judges do not have the technical knowledge to choose such means, so that: “the tribunals do not have to be better related to all the principles that the Constitution states. In fact, the Constitution can guarantee not only individual “classic” rights, but also social rights, but a theorist can manifest that a jurisdictional control under the social rights is not feasible with the argument that the tribunals are not going to do a good job in comparison to the congress” [19]. Besides, the State and the public administration have human resources, economically disadvantaged and the judges do not have to spend economic resources on it. It is important to mention that in order to protect civil and politic rights it is important to have all the State apparatus and effective infrastructure in relation to the use of economic resources- the function of the police to protect the right to personal security or the cost of the elections related to politic rights- so that: “If we assume a general concept of provision, all the rights in function to positive actions of the State, would be considered as benefits the State should provide to the society; in short the right to benefit as a general concept” [20].

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Moreover, the rights to benefit increase the freedom and ensure it, so the debate between equality and freedom is considered false. Besides, as a result equality should be materialized and not merely formalized, so in fact the implementation of the civic and politic rights following the interdependence principle of the rights also depend on the implementation of the economic, social, and cultural rights. It is important to consider that the configuration of the States as Social States result in the flexibility of the limits between the organic and dogmatic part of the Constitution, mainly because the implementation of the rights depend on the institutional structure that can be enforced in the jurisdictional via. In fact, it is a vital field not dominated by the citizen, but “it essentially depends on the State roles” [21]. The committee on economic, social, and cultural rights manifested about the obligation merging from the art. 2.1 of the International Covenant on Economic, Social and Cultural Rights, expressed that “….an State in which a big number of people lack of food, special attention at hospitals, of housing and clothing, or the basic principles of teaching, is not accomplishing its obligation as a State. If the Convent would be interpreted in a way in which obligations cannot be accomplished, it would be meaningless” [22] and that: “…. When a right recognized by the covenant cannot be fully exercised without the intervention of the judicial power, it is necessary to establish jurisdictional resources” [23], referring to the right to hosing in the General Observation No 4, it was reminded that the right to housing generates for the States and thereby for the Judicial Branch positive obligations of provision such as the construction of public houses or help in the rent of houses, negatives or of abstention such the prohibition of forced evictions and the protection against third ones such as banks, owners, and real state agencies. Consequently, it is a mistake to state that the essential core of the right to housing and its judicial protection depends on the legislative development. In fact, it is present in the Constitutions and in international human rights treaties, recognizing thereby to the Judicial Branch at least the following assumptions: 1. When there is positive legislation that develops the right to housing. 2. When there is no satisfaction it may put in risk other fundamental rights (connectedness), so that the right to housing in this cases cannot depend on the economic, social, financial, or cultural circumstances. It is the judicial authorities’ role to provide efficiency in the implementation of the right to housing. Thus, it has to be considered the interdependence of the rights and the systematic interpretation of the laws. For example, in the case the Government

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of the Republic of South Africa and others a/ Grootboom and others, referred to illegal evicted occupants who built houses in the sports center, they did not have basic services, hence the Supreme Court of South Africa established that the State neither formulated nor ran programs related to housing that could satisfy the needs of housing of the people, concluding that the illegal occupants had the right to receive accommodation from the State. While the Supreme Court of Argentina in a Complaint Resource Q.C.,S.Y. a/ Government of the city of Buenos Aires s/Protection, referred to a Bolivian woman whose child suffered chronic encephalopathy who was “living on the streets”. She was not able to work and overcome this problem, so all the members of the Supreme Court understood that the Buenos Aires government’s social assistance was neither appropriate nor global to the situation and it was stated that in a short or long term period the woman should overcome her problems, referring to the mechanisms of protecting the right to housing stated that: “It is not about evaluating the amount of money that the State pays, and based on the price end up its obligation, according to an standard of the implementation of the rights, but mainly to value the quality in the adaptation to the needs of the case: So that, the State’s inversion should be adequate, which does not depend on the amount that is set, but mainly appropriate use of the money to overcome this problem”. 3. The economic, social, and cultural rights and among them the right to housing mainly conditions to the State, so the law cannot go against its implementation, aspect to be related to the principle of progressivity and not regression so that the government acts that can go back in the protection of the rights are not admissible. Also the tribunals have the tuition to prevent inappropriate policies. In fact, they have to lessen the policies that can affect the structure of the rights or even palliate discrimination. In this case the Resolution T-025/04 of the Colombian Constitutional Court declared the unconstitutionality referring to the displaced people in Colombia, emphasizing that the Law 387 from 1997 is applicable to this case: “…. The lack of correlation between what the law states and the means to fulfill it, since the problem of displacement has clearly increased, we have to consider the insufficiency of the economic resources. In all, the magnitude of the problem has to be analyzed from how is the institution’s capacity to respond efficiently to this problem…”. 4. The passiveness of the main branches in relation to economic, social, and cultural rights which have been recognized constitutional can generate unconstitutionality by omission. In fact, the Constitution stated the limit of the State’s role in the liberal constitutionalism, nowadays the Social State promotes the State’s role, so the State has to demonstrate efficiently satisfy the right to housing.

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4. SPECIAL EMPHASIS ON THE RIGHT TO HOUSING RELATED TO THE PRIVATE LAW The constitutional recognition to the right to housing can generate a complicated relation among the public and private law. So that, the property over a land- in which there will be other law figures such as the usufruct, use, and habitation and so on- it is conditioned to accomplish a social function. Aspect that is fully completed when the property to land turns out in a house, but the owners can sell it freely, in a Social State the State’s role is to intervene in private relations mainly in order to protect the weak one of the contract because there is a greater social interest- Ex.- avoiding the speculation or in order to protect the rights of the consumers and therefore: “the role of the judge is subsidiary because it is going to be useful to replace the will of the parts” [24]. That is to say, the right to housing can be determined as a limit to property right so that the State can regulate the mediation among sellers and buyers, so this way unfair terms can be avoided - ex. to impose expenses to the buyer that belongs to the seller, to establish the later irresponsibility for hidden damages, the terms that make responsible to the seller for delays, the used material among others-, increase taxes to those whose houses are empty, to establish that the renter should have preference right of acquisition among other mechanisms to implement the right to housing which cannot replace private initiative. Referring to familiar subject the laws foresee the possibility of constructing a house as familiar property, when the house is being sold in order to protect the family they require the participation of both spouses when the good belongs to both, in case of divorces the judge can provide the right to use the house preferably to the spouse who stays with the children or the judge can enforce the spouse who caused the separation to pay the rent of the house as an assistance. Concerning forced evictions as a general concept – ex. illegal expropriation- the General Observation No 4 established that: “…they can only be applied in exceptional situations and they always have to include alternative ways for the accommodation of the affected ones….” It also referred to the obligation of the States to avoid evictions that can “….cause some people to end up without a house or violation to other human rights” to expose that “When the affected of the evictions do not have enough resources, the State party should adopt all the needed mechanisms, according to the resources it may have, to provide housing, reestablishment or access to productive land” aspect clearly related to the fair process of the law so that way “…. Process to assure, in a great manner possible, the fair solution of the controversy” [25], so following this idea it is not possible

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to deprive the right to housing to a person without respecting the fair legal process. Thus, the right to housing in the private field is composed of subjective rights that allow people to request the protection from forced evictions, illegal demolitions, and the rejection to illegal interferences, and the right to choose a house and a place, to the security of the possession- ex. the properties should be registeredand when it is necessary to the restitution of the house aspects clearly protected by the law and its full reparation, for example in the cases of massive displacements how it happened in the Resolution T-821/07 of the Constitutional Court of Colombia, where it was established: “…..to establish the policies, plans, and procedures in order to get effective satisfaction of the right to return to the people all the goods that has been taken away for many years, currently a lot of these people are facing forced displacements…”. 5. CONCLUSION ●

●

The right to housing has individual, family and collective dimensions. Thus, in Social States, to recognize it as mandatory is the first obligation this right itself generates for judges. In general, the shortage of homes results mainly due to the lack of job security and the low wages that lessen the capacity of savings- aspects that undoubtedly respond to economic models in spite of that “it is not possible to build homes for poor people with the consideration that economic restrictions involve reduction in their needs as human beings” [26] hence it belongs to the Judicial Branch when the other branches have omitted, to enforce its implementation and/or in the case to implement it.

CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1] Espínola Orrego G. El derecho a una vivienda digna y adecuada en el ordenamiento jurídico español. Visitado el 6 de septiembre de 2013. Available from en: http://www.google.com.bo/url?sa=t& rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CCkQFjAA&url=http%3A% 2F%2Fd space.uah.es%2Fd space%2Fbit stream%2Fhandle%2F10017%2F9143%2FTESIS_GildaEsp %25C3%25ADnolaOrrego.pdf%3Fsequence%3D1&ei=vXhuUpunI8fF4AO1hYA4& usg=AFQjCNGw2QHcj UKJJMCdOTI-029NWf mQgQ&bvm=bv.55123115,d.dmg.

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[2] The art. 25.1 states: “Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control”. [3] The art. 11.1 points out: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions …”. [4] The art. 5 states: “In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (e) Economic, social and cultural rights, in particular: (iii) The right to housing.”. [5] The art.14.2 points out: States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right to: (h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications; while the art. 15.2 states that: “States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals”. [6] The art. 27.3 states: “States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programs, particularly with regard to nutrition, clothing and housing” and the art. 16.1 states that: “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honor and reputation.”. [7] The art. 17 points out: “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.2. Everyone has the right to the protection of the law against such interference or attacks.”. [8] The art. 43.1 states that “1. Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to: “…(d) Access to housing, including social housing schemes, and protection against exploitation in respect of rents;”. [9] The art. 21 states: “As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.”. [10] The principle 2 “It should be an objective of national policy to promote, within the framework of general housing policy, the construction of housing and related community facilities with a view to ensuring that adequate and decent housing accommodation and a suitable living environment are made available to all workers and their families. A degree of priority should be accorded to those whose needs are most urgent.”.

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[11] The art. 2 states that: “1. Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. 2. Such action shall include measures for: … (c) assisting the members of the peoples concerned to eliminate socio-economic gaps that may exist between indigenous and other members of the national community, in a manner compatible with their aspirations and ways of life.”, the art. 14 states that: “1. 1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.” related to art. 16 and 17. [12] The art. 5.2 points out: “In ascertaining the minimum standards of living, account shall be taken of such essential family needs of the workers as food and its nutritive value, housing, clothing, medical care and education.”. [13] The art. 9 states: “1.To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:, a: Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces; Information, communications and other services, including electronic services and emergency services.” And the art. 28.1 states that: “States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability”. [14] The art 11.2 points out: “No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.”. [15] The art. 8.1 states that: “States should undertake, at the national level, all necessary measures for the realization of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income. Effective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating all social injustices”. [16] Cfr. De Soto H. El Misterio del Capital. Editorial Planeta. Bogotá-Colombia: 2004. [17] ONU HABITAD. Tenencia de la tierra, derechos a la vivienda y género-Marco nacional y urbano: Colombia. Visitado el 6 de septiembre de 2013. Available from www.unhabitat.org/pmss/ getElectronicVersion.asp?nr=2430&alt=1. [18] Bernal Pulido C. El derecho de los derechos. Bogotá: Editorial Universidad del Externado 2005; p. 302. [19] Ferreres Comella V. El control judicial de la constitucionalidad de la ley. El problema de su legitimidad democrática. In: El canon neoconstitucional. Universidad Externado de Colombia 2010. [20] Alexy R. Teoría de los Derechos Fundamentales. Madrid: Centro De Estudios Políticos y Constitucionales 2008; p. 419. [21] Ibidem, p. 486.

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[22] Comité de Derechos Económico, sociales y Culturales, Observación General No. 3 “La índole de las obligaciones de los Estados Partes – párrafo 1 del art. 2 del Pacto”. [23] Comité de Derechos Económico, sociales y Culturales, Observación General No. 9. [24] Cobacho Gómez JA. El uso de la vivienda familiar y el interés de los hijos. Visitado el 6 de septiembre de 2013. Available from revistas.um.es/analesderecho/article/view/82931/79971. [25] Corte Interamericana de Derechos Humanos. Opinión Consultiva 16 de 1999. [26] Salmona R: citado en Diagnóstico del derecho de las mujeres a la vivienda adecuada y el acceso a la propiedad de la tierra, desde una perspectiva de género en Colombia de Eneida María Chacón, María Eugenia Ramírez, Margarita Zea, Silvia Yañez. Visitado el 6 de septiembre de 2013. Available from: http://www.google.com.bo/url?sa=t&rct=j& q=&esrc=s& frm=1&source=web&cd=1&cad=rja& ved=0CCkQFjAA&url=http%3A%2F%2Fwww.cladem. org%2Findex.php%3 Foption%3Dcom_ rokdownloads%26 view%3Dfile%26task%3Ddownload %26id%3D957%3Adiagnostico- de-l-situacion-del-derecho-de-las-mujeres-a- la-vivienda-adecuada-desde- una-perspectiva-de-genero- encolombia&ei=c3luUpW7GrS-4AOtsIGoDQ&usg=AFQjCNFD_5lEgX1 5RDWTbUiqW2s CXRU9LQ &bvm=bv.55123115,d.dmg.

PART VII IMPRISONED PERSONS

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CHAPTER 15

Safety and Human Rights in Spanish Prisons Fernando Reviriego Picón1,* and Faustino Gudin Rodríguez Magariños2 1 2

Department of Constitutional Law, National University of Distance Education, Madrid, Spain Magistrate, Spain Abstract: In this chapter it is analyzed that how issues of internal security and good order in prisons can enter in conflict with the rights of inmates; in many cases these security measures are logical constraints, appropriate and proportional, but in others these should be considered as mere arbitrariness of the Administration without any basis. Particularly, the actuation of the Spanish Ombudsman is studied.

Keywords: Control, Judge of Guarantees, Ombudsman, Prisons, Rights, Transparency. 1. INTRODUCTION The Supreme Court of the United States [1] has issued a statement concerning the ban on growing a beard in the prisons of the State of Arkansas. The prisoner, who claimed against this rule, was a Muslim who had been sentenced to life imprisonment. For religious reasons he wanted to keep his beard. The ban was based on security reasons. Thus, the regulations only allowed a small moustache or beard half a centimeter for certain prisoners who were suffering specific skin problems. The US Supreme Court unanimously, as was easily predictable, concluded that this kind of ban violated the federal law on religious practices. The prison administration failed to argue that this prohibition was for security reasons in prisons. Furthermore, almost all the other States of the Union allow prisoners to grow a beard. This particular case shows how issues of internal security and good order in prisons can conflict with the rights of inmates. In many cases, these security measures are logical constraints, appropriate and proportional. However, others, Corresponding author Fernando Reviriego Picón: National University of Distance Education, Madrid, Spain; Tel: 0034 913986128; E-mail: [email protected]

*

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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such as the judgment of the Supreme Court, should be considered as mere arbitrariness of the Administration without any basis or logic. In the modern State of law there is a space where man is in a situation of special vulnerability to the state: confinement. We cannot forget that every year, throughout the world and here in Europe, the fundamental rights of prisoners continue to be infringed in many ways. We can detect a particular world with its own rules. In the words of Dostoevsky, prison is a place where man is in an asymmetric situation of inequality. Prison places man as a piece of a great machine. Therefore, it is said that the prison is a total institution. The asymmetric situation is increased by the fact of the obvious link between social exclusion and confinement. This extreme inequality is a breeding ground for abuse and history shows us that one of the places where abuse has become more evident is the prison. However, as revealed magnificently by the European Court of Human Rights, the entry into prison cannot presuppose that the law stops at its gates. In others words, enhancing the prisoners’ life and upgrading jail infrastructures remain key challenges for fundamental rights development. Our constitution in article 25 is concerned with the rights of prisoners. This kind of proclamation is innovative in the context of comparative law, although lately we observe in some Latin American countries similar statements. In this article we can read: “Prison sentences and security measures shall be oriented towards re-education and social rehabilitation and may not consist of forced labor. The person sentenced to prison shall enjoy, during his imprisonment, the fundamental rights contained in this chapter, with the exception of those which are expressly restricted by the content of the prison sentence, the purpose of the sentence, and the penitentiary law. In any case, he shall have the right to remunerated work and the pertinent benefits of Social Security, as well as access to culture and the integral development of his personality”. This last part, according to Alzaga, could be considered as one of the “most candid statements that we found in the extensive constitutional text,” and also an “unsatisfactory technical solution,” but in any case, would show a “great concern of constituency parliamentarians about the situation of prisoners.” Let us now have a look at the importance of achieving a higher level of transparency in prison. We think that darkness in prisons involves a serious danger of exposing inmates to abuse. Therefore, we propose effective measures to avoid situations of impunity. We propose the installation of a video-monitoring network that complements the existing equipment and allows more control of prison life in order to prevent the future abuses of the authorities. All of this

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information must be efficiently captured, archived and easily shared when we face a case of potential abuse. We consider that it is very important to give more information to the Ombudsman about people deprived of their liberty and this information shall not be subjected to control or checking. 2. CONTROL AND TRANSPARENCY The old “prison visitor” was an impartial authority who in the past exercised an external control over the apparent impunity of the jailers. He is an officer who has a long tradition in the history of our Rights, and among those who have exercised this important responsibility are distinguished jurists such as Bernardino de Sandoval, Tomas Cerdán de Tallada or, in the nineteenth century, Concepción Arenal. Currently the figure who exerts such control is the Ombudsman, greatly emphasizing their status as National Authority for the Prevention of Torture, likewise we cannot forget that the Spanish Prison Act authorizes the Prison Oversight Judge to deal with complaints from prisoners concerning the prison regime. Acting in his/her role as national authority for the Prevention of Torture, the Ombudsman has visited prisons multiple times. In Spain the Ombudsman, charged with promoting human rights, is elected by the Congress and he is appointed for four years. The Ombudsman is authorized to investigate any action alleged or appearing to be in contravention of the fundamental rights and freedoms guaranteed to the individual under the Constitution. This “High Commissioner of the Parliament” may supervise the activity of the penitentiary administration, informing the congress of it. In Spain, the Ombudsman reports annually to the parliament. Since 2011, the Ombudsman has been accompanied in his visits by technical experts (psychologists, psychiatrists, etc ...). A big handicap for the Ombudsman is how to get appropriate information about what is happening inside the prison walls. During these visits, the Ombudsman also took the opportunity to visit some Penitentiary Centers, and he was able to hold several interviews with inmates who had requested a meeting with him. We consider it necessary to fight against hidden abuses, so it is very important to create a greater level of transparency. We believe that it necessary to conduct investigations in order to bring to the surface hidden justice struggles and produce a report about what is really happening inside prisons. Moreover, if there is a real desire to achieve transparency, a say must be given to those able to act as a counterbalance. In order to achieve this goal, it could be interesting to introduce

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video surveillance, traffic detection systems and variable information panels. These video surveillance systems must be adopted as the most effective medium to identify if anything strange happens inside the penitentiary centre. Hardware-based video surveillance is easy to abuse, so compliance with the appropriate laws and legislations is absolutely necessary. Therefore, balancing between these rights, the protection granted to the prisoner's right to privacy should be less than that of a normal citizen. The information collected in this manner must also be subjected to the standards of evaluation for a judge or an independent authority. As our Constitutional Court expressed in the Salhaketa Asociation Case (STC 89/1987, June 3rd, case “Private communications among inmates”), privacy is affected by lack of freedom, almost reduced to inner life, which is without any doubt one of the most painful consequences of such lack of freedom. This control reaches a point where many activities, ordinarily considered private are not only exposed to other people but are even in need of authorization. This same idea is repeated in many other Judgements as in the STC 57/1994, February 28th, case “Strip searches and intimate communications of prisoners” and the STC 195/1995, December 19th, case “Cell principle”. 3. VISUAL CONTROL, VIDEO CAMERAS AND PRISONS The systematic use of video-recording devices in prison could be used exclusively as a means of control of inmates but also as a means of inspection on the legality of the actions of the prison administration. We must insist that the search for a high level of transparency is a requirement of any center of internment. This is due to different factors and depends on the life of the prison. We can recognize an asymmetric relationship between the Administration and the inmates. There is an inequality that is extrapolated to all aspects of life in prison. We face a situation of complete inequality where the inmate is in a situation of almost total helplessness. In the end, it is the word of a prisoner against the word of the authorities. The review of complaints submitted by prisoners is a very important matter. We believe that an independent authority must be created in order to have effective control of the complaints procedure. Permanent video surveillance in penitentiary centers helps to determine if a complaint is true or false. It is clearly a useful instrument in the fight against torture, helping penitentiary centers to achieve transparency and function correctly; these modern telematics means can shine a light into previously unclear spaces.

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The penitentiary administration itself will benefit from the use of such a system because it will also accredit legitimate action (good faith policy). The simple possibility of being filmed can act as an obstacle to the commission of future crimes on the part of inmates and civil servants. The capture of images with the corresponding sound in prisons may provide a determinant means of test in a future process. Video vigilance is a guarantee, not only for the inmates, but also for the civil servants that work in penitentiary centers. We must recognize that the immense majority of these professionals are honest workers, and video surveillance could help to defend them against false accusations of criminal or disciplinable actions. In any case, we think that there needs to be a proportionality analysis (balancing test). We cannot forget that this process may be intrusive, in particular compared with the purposes it seeks to achieve, and we also need to consider the availability of other viable means to achieve those same purposes. From our point of view, the most important goal should be to obtain a “deterrent effect”. When we put cameras everywhere, everyone will know that impunity is quite impossible to get. For that reason we consider that the atmosphere of impunity will disappear from the prison environment. Implantation of a bigger number of camcorders at prisons, a measure which has been requested by the institutions themselves at various times, is without any doubt an element which deserves our attention. One of the existing difficulties is the diversity of recording systems at different prisons, with heterogeneous technologies. Furthermore, the functionality of the devices may vary. We must remember the LOGP [2] regarding public ownership files, where surveillance files must be kept at prisons. It prescribes certain requirements regarding their creation. Among them, there is a need for notification and general inscription, provided that the creation, modification and general inscription of a public ownership file must be carried through a general disposition which must be published at BOE or at the established official journal. Fulfilling these forecasts, the Ministry of the Interior approved the Order INT/1202/2011, on May 4th [3], by which private files of the Ministry of the Interior are regulated. In any case we must not forget the military prison located in Alcalá de Henares, depending on the Ministry of Defense; we find there an example of correct performance and compliance with the law regarding surveillance at a prison with Order DEF/1988/2012, September 13th, by which Alcalá de Henares military penitentiary established private files, whose file

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number 13 is titled “File of video surveillance of EPM of Alcalá”. Regarding video surveillance and data protection, the recent incorporation of safety enterprises in the field of prisons makes the special observation of legality in such matters even more urgent, particularly as the Ministry of the Interior has stated that the responsibility of such private enterprises will be not only the surveillance of the external perimeters of prisons, but also control of monitoring areas. Regarding the concept of file, the distinction of analogous concepts such as surveillance and monitoring [4] seems to be necessary, as the existence of cameras does not always mean that the images are being recorded. This way, the first type would consist of the reproduction of images in real time without recording and without the possibility of being modified; unlike the images captured by video surveillance devices, which can be modified. To use the recorded images in prison some requirements will be needed as the fact that anyone should know about such monitoring. This way it is not considered to be a file, only as images broadcasting in real time. But image capturing in real time without storage is constrained to Spanish Data protection Law (LOPD) and its regulations. Instruction 1/2006 understands that the file does not exist and removes the obligation of previous inscription and declaration: The other obligations still apply. Logically if there are no stored images, the right of access to images no longer exists, except for some specialties regarding rights content at Articles 15 (and subsequent articles) of Spanish data Protection LAW (LOPD). In other words, there can be “image processing” without a file, being LOPD applicable in such cases too. Video surveillance through video camcorders which occurs inside prisons belongs to both types [5]. The second group, where the images and sounds obtained through video cameras remain recorded, effectively would come under the concept of file. On the other hand, the fact that the consent of the affected person is not necessary does not exempt the obligation to control information derived from the processing of data related to all the individuals who could be inside a prison, including, of course, the people serving sentence in such establishment. Therefore, we believe that the Penitentiary Administration must place in the video-surveyed zones, at least one distinctive notification located in a fairly visible place, whether in open or closed spaces. Instruction 1/2006, regarding such information, requires at least one distinctive notification to be placed in a manner in which it is sufficiently visible, whether in open or closed spaces, but does not require a specific emplacement of the video cameras.

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It must be taken into account that inmates and public servants working at the prison, and visitors do not have access to the same places in the prison. As a consequence, the placement of instructive posters will be necessary, indicating the existence of video cameras, and to whom rights may be exercised, in all the places of access of the prison, or at least in the main entrance door and in the pavilion of ingress. Furthermore, pamphlets detailing the provided information on the article 5.1 of the LO 15/1999 must be available at the penitentiaries. In the case of workers serving the Penitentiary Administration it must be noted that the use of video surveillance must be exceptional for labor control, implying less invasive methods. In the case that video surveillance is used for labor control, its purpose must be stated on the purposes of the file [6], with the duty to inform the prison employees as well as the syndicates with representation in the prisons sector for a greater protection of their rights. As a closure of the system and in order to increase safety in such matters, the socalled habeas data has been established as a legal remedy to enforce the right of data protection. Such designation is inspired in the habeas corpus institution, so well-rooted at a criminal and prisons scope. It will be specified in the rights of every person to appeal to the juridical authority, if the right of access would have to be denied. We understand, the administrative way of the Prison Institutions and the appropriate Authority of control, is to submit to it all files with personal data, including the images captured by the cameras of the prison. On the penitential scope and regarding the inmates, it is understood that such judicial authority could be, previous reformation of the art. 76 LOGP y 18.4 LOPD [7], stating that the judge in charge of prison supervision has the duty of protecting the rights of the inmates. (A legislative modification will be needed to enable such a procedure). In such procedural plot on a more generic level, it will be necessary to go towards a reform is the Oversight Judge, reshaping certain issues of its hybrid nature jurisdictional and administrative. It is interesting to remark that in actual Legislature, the Senate has urged the Government to present a project of law to the General Courts in order to rule the procedure regarding Prison Oversight Judges defining their powers regarding sentencing authorities in matter of execution of freedom, depriving penalties and safety measures [8]; many thing have being written about this matter in past years [9]. In order to exercise a real function as Judge of Guaranties ad hoc on the administrative-penitentiary scope, it is necessary to empower its role as prisons visitor knowing the complaints of the prisoners. It must exert a marked control feature over the possible excesses of the Administration within this situation of special subjection which limits the essential rights of the inmates. In conclusion it should be clearly placed as a figure in charge of the correct administrative performance, as its name suggests.

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We agree with the Ombudsman's idea which is reflected in its several reports regarding National Authority for the Prevention of Torture, advising that video surveillance must be present in common areas, but not inside toilets, cells or spaces for religious worship. These zones, known as sensitive data, must remain outside the big data concept, which collects all the data of the prison operation. However, the risk of being exploited as spaces of impunity gives place to defend, in some occasions and involving of other environments, the introduction of cameras even in such scope; Then, we find in the report of a Center for Young offenders, after highlighting that video surveillance cameras are only present in two containment rooms and suicide prevention, it is reported that the devices are needed inside rooms, toilets and showers to secure the safety of the inmates at its maximum. Beyond such eventual extension, which results are more than questionable, the capture of images must be unceasing, and must be preserved long enough for the corresponding authorities to revise the captured images if necessary [10]. According to such institution, there is no uniform guideline among the Spanish prisons regarding video surveillance systems, meeting cases in which none exist and other cases in which the systems are obsolete and do not fulfill the requirements of the active rules. It is estimated that the conditions under which the recording is activated must be studied, including conversation time and safety protocols to ensure indemnity of recordings. The ways to inform persons which are deprived of freedom about the realization of such recordings and the authority to which they can defend their rights, are established within the data protection Legislation. On the other hand, the extraction and storage of images that reflect any incident involving a person who is deprived of its liberty, should be incorporated into all protocols without waiting for the existence of a formal request to that effect. As a way of prevention, periodic audits should also be carried out, to include services of control and inspection from responsible authority for each case of freedom deprivation, consisting in periodic auditing in the recorded films not linked to clarify any specific complaint” [11]. It has to be taken into account that prison walls keep an opaque barrier in too many occasions. In order to guarantee the integrity of the operation (makes) it is necessary to introduce greater transparency spaces. For the video surveillance, not to became just another way of control or subjugation for inmates, is absolutely necessary it has a bidirectional character, to establish safeguards for inmates to have access and possibility to use its content in case of possible abuse. Also, in view of the specificity of the subject, it seems that the current regulatory

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framework consist of LO 4/1997, of 4th of August, which regulates the Use of Video Camcorders by State Security Bodies in public places is insufficient and the need to establish regulation ad hoc for this matter should be postulated. However, involving the convenience of the use of surveillance in prisons, we cannot close this chapter without remarking the possible effect that this measure could have on the individual deprived of freedom feeling watched, not only by people (prison public servers) but by devices recording images and sounds. So, it may be convenient to submit to consideration the so-called panoptism and the impacts that it has on the application of the new technologies. In a more specific way, it may be of interest to allow the possible recording of the disciplinary committees itself. With regard to the noticeable success of the so-called Open meeting law, the introduction of this American technique, whereby the main acts of administrative authorities are monitored by the recording would be especially defensible even giving the opportunity to engage other social sectors, exerting in this manner a purely inhibitory practice facing potential excesses. There is no doubt about the huge relevance of Open meeting law on the management of coexistence in prisons and the perception for the inmates of the application of justice in its more quotidian level. The recording of the oral verbal allegations carried out by the prisoners within a Disciplinary Commission will transform into an additional warranty [12]. Such images could prove very useful in the case of bringing an appeal in front of the Judge or Prison Surveillance due to the sanction imposed. There is no doubt that it will mean an advance regarding the principle of intermediacy in the same way in which the article 743 of Spanish Criminal Procedure Act (LECr.) states that the sessions of the trial involving criminal proceedings must be registered “in a format suitable for the recording and the playback of the sound and image”. Beyond its eventual recording inside the Commission functioning, it is to be noted that in recent times, the need for the acceptance of the requests claimed by the inmates in order to access the images taken by the surveillance system installed on the establishments is debated with a greater intensity. With no doubt, unless in the case that centre security may be risked or in the case that it was not relevant for the specific situation, the inmates must have rights to check such images. Obviously, the files management becomes complicated, but it is in the benefit of justice. The suggested admission of evidences by the inmates can only be denied in legally appropriate cases as impertinent or uselessness for the specific case. The bases regarding the use of images for prison disciplinary proceedings are stated in articles 231 and following ones of RP. Specifically, in the second paragraph of

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article 242. h), the inmate has the possibility to allege everything considered appropriate on the prescribed charges, suggesting the evidences the inmate deems necessary for his/her defence. There is no legal inconvenience, in the case of any party alleging its need, recorded images and sounds could be used in the Prison Disciplinary Proceedings. Of its own motion, based on Article 246.4 of RP, the Disciplinary Committee could claim images filmed by security cameras are necessary for the good resolution of the case. Such Article allows Disciplinary Commission to decide, through the Instructor Judge, the proceedings and the necessary additional inquiries to resolve the procedure. Síndic of Greuges believes it must ensure the presence of an attorney at any viewing of images captured by video surveillance cameras of the prisons which could be an evidence in a prison disciplinary proceeding. It is understood as necessary that “any image susceptible to be used as evidence in prison disciplinary proceedings has to be deposited until the first viewing in the corresponding Duty Court”. The so-called Sindic of Greuges warns that the right of prisoners to access to the recorded images in prison is not usually respected, while the processing of a prison disciplinary or criminal or serious administrative violation is proceedings [13]. We understand that in this area it is extremely important to avail of legal assistance at the viewings where the use of the resources of prisons legal aid can be extremely convenient and reasonable – assistance contained at prison regulation itself but very little used. A collation of abuse and the use of technology would be convenient to persist on compliance of recommendations of the Ombudsman in this area. As a prominent example we can mention is to take pictures to “complement the information contained in the injuries report of prisoners, made by health practitioners of prison.” [14]. In words of the Ombudsman: “we cannot ignore any longer the predominant and increasing value of the image, as a support of relevant information”. Last published reports [15] insist in this point, showing that injuries continue to be documented only by medical report, without pictures. Also mandatory identifying of prison public services through professional card is particularly important in the field of abuses and possible complaints from inmates. 4. PRISON OVERSIGHT JUDGE AS A JUDGE OF GUARANTEES The Prison Oversight Judge as a Judge of guarantees is reflected in STC 129/1995, of September the 11th, highlights that the functions of Prison Supervision Court are “to ensure the conditions affecting Fundamental Rights and freedoms of prisoners and condemned individuals under the terms provided in

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Articles 25.2, 24 y 9.3 CE meaning an effective way of control within legality and guarantees interdiction of arbitrariness of public powers”, expressly referring to the judgment STC 73/1983, of July the 30th.This monitoring of guarantees is the real reason of this figure, exercising extreme control as a specialized judicial body and being a key part of the prison system to ensure respect for the rights of prisoners (STC 2/1987, of January the 21st). In a specific way, our Higher Court remarks its function regarding the preservation and protection of the main rights of the inmates (among other SSTC 143/1997, September the 15th and 153/1998, July the 13th), becoming a real guarantee which validity and effectiveness cannot depend on the possible exercise by the inmate of the proceeding appeals (among other, SSTC 106/2001, of April the 23th and 194/2002, October the 28th). In analogue sense, SSTC 195/1995 December the 19th, 128/1996, July the 9th and 39/1997, February the 27th, insist “in the important roll for the Prison Oversight Judge in our prison system which is responsible not only to solve by the way of appeal, claims from inmates about disciplinary sanctions (arts. 76.2 LOGP y 94 LOPJ), but overall safeguard inmates rights and correct abuses and deviations which could occur while accomplishing prison rules in the prison system it is a necessity of the whole system (art. 76.1 LOGP)”. Our LOGP introduced a model of specialized jurisdiction which strongly favor a guarantee for the rights of the convict, not only regarding the proceeding of appeal, but also due to their direct knowledge of the prison, with the possibility of making suggestions involving straight administrative matters. However it should be noted that beside protective function we are facing a hybrid legal and administrative body exercising executive functions too, resulting, from our point of view, a real undermine of its very “raison d’être”: the already said roll of warrant. Such unexpected hybrid character, judicial and administrative- is continuously underlined by the doctrine [16]. From this triple aspect of its activity and regarding what we are interested in, its various functions can be identified by three major groups. First group one, activities of protective character, directed to safeguard respect of inmates fundamental rights at the prison scope. Second group, functions purely jurisdictional and related with the execution of imprisonment condemns, functions that directly engage with Constitutional formula «to execute judgments» (basically those contained in paragraphs a), b), c) and i) of art. 76.2 of LOGP). Through such functions Prison Oversight Judge ensures the effective compliance of specific penalty, through several

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individualized techniques in the execution phase, the punitive content of the sentence. Alongside them, and whit upward trend, there are other quasi-administrative functions [17]. It is difficult to specify the nature of those functions. If they are given administrative nature (they would be some of the aforementioned functions in Article 117.4.° of CE), then we should conclude that resolutions adopted in the exercise of such functions would be subject to all the legal regime of administrative decisions, therefore in principle we should confirm the possibility to appeal such decisions in the administrative jurisdiction. Observing such surprising hypertrophy of responsibilities, we understand we face a rather unnatural figure of Judge of guaranties, acting as a Judge and jury in certain areas, he could stop behaving as an external control body, since it experiences a kind of metamorphosis in some occasions, becoming one more part of the statutory relation itself. A clear line does not exist in some points of the Prison Oversight Court and Prison Administration tasks. Articles exegesis (interpreting) 76.2 g) of LOGP (Prison Oversight Judges have to agree what is appropriate about complaints or requests from inmates related with prison regime and treatment at prison when they are affected to their fundamental rights or to their prison rights and benefits). 77 LOPG (states that Prison Oversight Judges could address DGIP making proposals referring to the organization and development of economical, administrative, and all related with prison treatment) has generated contrary interpretations of the jurisdictional possibility of adopting while giving an answer to a complaint or a petition decisions which point in the services and activities provides in the prison [18]. 5. TOWARDS A SITUATION OF HIGHER GUARANTEES: SEARCHING FOR GREATER GUARANTEES The implementation of prison system with the maximum of guaranties in order to prevent and to finish with abuses is one consequence coming from the special situation of weakness of inmates at prisons. Such guaranties must be to the higher level in its control and in its previous step of its limits. As the Ombudsman said “fundamental rights are greatly affected by any kind of lack of freedom, is must be claimed that fundamental rules to define the way such absence of freedom must happen, have the greater guarantee” [19]. In line with it STS of March the 17th 2009, sets the annulment of the first paragraph of Instruction 21/1996, of December the 16th, from the DGIP, which had general rules about security, control and incident prevent regarding negligent

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or non adapted inmates. All that in relation with the fact that “instructions do not have the nature and guarantees of law or general dispositions, and are not an appropriate way to rule rights and obligations of inmates at prison.” [20]. Beyond this discussion of normative ranges, and in line with this question of allegations, abuses, mistreatment or torture it is suitable to underline the matter of visual control in prisons, which is directly linked with such matter, and with the fact that one of the most frequent complains of inmates in prisons is the existence of alleged mistreatment in prison mainly from public servants but from other inmates too. To finish these brief notes we must insist on the function of warrant of the State for the inmates, and is the State responsible for inmates’ custody by the design of juridical contexts of minimum risks warning the asymmetric relations between inmates and public servicers they have and live in prison? Filming has been a way of control traditionally used to protect the community from criminals, that can cover a new function protecting the system from possible abuses, and at the same time can prevent and protect against abuses from the proper Administration itself helping to have a transparent system without any opacity. Cameras, and general technology are an excellent tool of protection for inmates of possible abuses, we have to stress it in order to get more transparency to this complex relationship of special link. As Díez Picazo said, in such areas where there is still a great opacity, the limitation of rights inherent with the lack of freedom often brings situations too close to the line between what is constitutionally acceptable and what is not [21]. CONFLICT OF INTEREST The author declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1] Holt v. Hobs 574 U.S. (2015). [2] Arts. 20 to 24 and 46. [3] Modified last time by the Order INT/2287/2014, November the 25th. [4] Spanish Ombudsman call this both systems video recording and video surveillance. Annual Report of national prevention against torture of 2010, 2011; p. 201.

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[5] In this regard the annual Report of National Prevention of torture of 2010 notes that “ “as far as the video surveillance, while modern prisons have such system available in dining rooms, courtyards, general halls, corridors of modules, entertainment halls, sport halls, workshop modules, but not in cells, visit rooms, affiliation dependencies neither personal search, the oldest ones have a heterogeneous situation and a lower deployment of such type of device –excluding perimeter zones-, which have sometimes outdated systems and are also not always fully operational. Also modern prisons have the possibility of making recordings, right to demand either continuously, which is unusual in the oldest ones”. [6] See Resolution: R/02221/2010 del Procedimiento No AP/00062/2010, the Spanish Data Protection Agency of November 18, 2010, concerning the Civil Guard files. [7] This provision prescribes that against the decisions of the Spanish Data Protection Agency may be brought administrative appeal. [8] B.O.CG. X Legislature, May 13, 2013. [9] We emphasize the work of Martín Diz F. El Juez de Vigilancia Penitenciaria, Garante de los derechos de los reclusos. Granada: Comares 2002. [10] Yearly Report of Torture Prevention 2010, 2011, p. 140. [11] Yearly Report of Torture Prevention 2010, 2011, pp. 192 and 193. In the analogous of 2011 of this Institution it is reiterated the reporting of this deficiencies and the, General Secretary of Prisons reports the insufficient budget to solve the problem, nevertheless, in Albolotes prison (Granada) “they are doing a research about the characteristics of the system, needs to modernize, record and preserve”, Yearly Report of Torture Prevention 2011, 2012, pgs 143 y 198. The same advice are valid for Hospital Unit Custody in charge of General Secretary of Penitentiary Institutions (op. cit. pag. 253).Is is important also to stress the importance of the recommendation of this institution referring to video surveillance systems which must be completed with “the audio recordings in the places where is could be possible, and always when a non communicated imprisonment occurs” (cit., p. 270). [12] Art. 246.1 Prison Rules. [13] Yearly Report of Catalonian Authority for the Prevention of Torture 2011, 2011; pp. 65 and 69. [14] Recommendation 93/2010, November the 16th. [15] Research of injuries reports of individual deprived of freedom, Ombudsman, 2014, Annual Report, 2013. In this last report it is noted in such point the “strength” that Prison Administration offers. [16] Between what, see Garrido Guzmán L. Manual of Penology. Madrid: Publications of the Criminology Institute Complutense University of Madrid-Edersa 1983; p. 440. [17] Reform introduce by Law 15/2003 art. 92 of Código Penal, establish the responsibility of such Judge to grant condition freedom to incurable sick and prisoner older than seventy years. This competence was already reflected at LOGP and in the RP (arts. 72 and 198), and at CP (art. 90) for general cases. On the other than, art. 92 CP seems to empower Prison Oversight Judge for particularly serious cases to grant the third grade at start and not by the mean of appeal – It seems clear legislator aim to set the urgent special cases to the process for such cases. [18] We cannot forget there have been many conflicts of jurisdiction between Oversight Judges and Prison Administration. The Court of Jurisdictional Conflicts of TS has been concocted the criteria for limiting the areas of competence between Prison Oversight Court and Prison Administration. See, SSTCJ of June the 28th, 1995, July the 7th, 1995, July the 25th, 1998. [19] Report 2010. National Authoriy for the Prevention of Torture, p. 191.

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[20] Latest reform of Reglamento Penitenciario, Real Decreto 419/2011, March the 25th. [21] Díez Picazo LM. Sistema de Derechos Fundamentales. Madrid: Thomson-Cívitas; p. 231.

PART VIII CHILDREN

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The Formation of Identity of Children in a Consumer Society Ana Gabriela Rangel Poncio and André Filipe Pereira dos Santos Reid* Law Faculty of Vitória, Espírito Santo, Brazil Abstract: The present work aims to understand the formation of identity of children in a consumer society. The study is extremely important to verify the need that many children have to be part of the social networks, to consume certain products so as to be accepted and conform to what is established by fashion. With that, through the phenomenological method, it was possible to analyze the phenomenon of a consumer society and, as it occurs, the formation of identity of children in this society. In studies done through field research conducted in the municipality of Conceição da Barra [ES], where we interviewed 12 children – the majority were of low-income – residents in the municipality – it was verified that the ideas of disposability of objects, bought only to satisfy dreams and desires are also present in the reality of the children of Conceição da Barra, who can be considered potential consumers.

Keywords: Advertising, Brand, Bullying, Childhood, Consumer society, Gender, Identity, Municipality of Conceição da Barra, Social networks, Standards of beauty. 1. INTRODUCTION The consumer society has as its main slogan the idea of “buy, use, and throw away.” In this context, it was observed that everything can be consumed and discarded in this society, such as relationships, undesirable parts of one’s own body and one’s own identity. The consumer society sells the concept of “identity” of and to people, so that individuals are in constant transformation of their own identity, in order to be always in accordance with established patterns and dictated trend or fashion by that society. It is in this scenario that the child grows and begins to form his identity. Given this, we seek to understand the formation of identity of children in a consumer society, in which, there is the need that many Corresponding author André Filipe Pereira dos Santos Reid: Law Faculty of Vitória, Espírito Santo, Brazil; Tel: 0055 027996050905; E-mail: [email protected] The article was produced as a result of research conducted in scientific initiation, financed by the Fundação de Amparo à Pesquisa do Espírito Santo [FAPES].

*

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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children have to be part of the social networks, to consume certain products, to be accepted and conform to what is established by trend or fashion and thereby exclude children who aren't inside of what is considered “beautiful” by the consumer society. Through field research, carried out in the municipality of Conceição da Barra, in the State of Espírito Santo, Brazil, we interviewed twelve students from elementary and high schools of the municipality, to identify how they have been inserted into the consumer society. 2. CONSUMER SOCIETY It is hard to conceptualize something into which it is inserted. Therefore, it is challenging to say what is a “consumer society”; it can be affirmed that it is current, totally capitalistic society and individualistic, being that those individuals who are not subject to its rules, are excluded from it. Despite the difficulty in defining a consumer society, as a member of that society, it becomes possible to analyze its key features, which affect, influence, and bring about consequences for all its subjects. In this sense, firstly, it is important to mention that what nurtures and develops a consumer society is the eternal frustration of desires. In other words: The desire of consumers is to experiment in real life the pleasures experienced in the imagination, and every new product is perceived as offering a possibility to achieve this ambition. But, as we know that reality always falls short of imagination, every purchase leads us to a new disappointment, which explains our determination to always find new products that serve as objects of desire to be replaced [1].

The products are born with an expiration date in the consumer society; the objects will last for a certain time. Thus, in the same way that generations of men are replaced by new generations over the passing of time, generations of objects are also replaced by new generations of objects over time [2]. With this, it is observed that the consumer society has the following slogan: “buy, use, and throw away” [3]. That way, you could say that: The consumer society thrives while managing to perpetuate the nonsatisfaction of its members (and thus, in their own terms, the misfortune of them). The explicit method to achieve such an effect is to cheapen and downgrade consumer products soon after being promoted in the universe of the desires of consumers. [4].

The consumer society promises, in a steady manner, achieving dreams and satisfying the desires of individuals; however, this promise just seduces while the

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total satisfaction of wishes continues unreachable [5]. The consumer society ruptured with the speech disseminated during many years, mostly by religious institutions, that happiness is something that will be fully enjoyed in the life after-death. In contrast to this, the consumer society promises earthly happiness, a happy life, both instantaneous and perpetual [6] to those who follow the trend dictated by it. Furthermore, the consumer society does not justify and, much less, legitimatize any kind of unhappiness, with exception of the suffering of criminals, which consists of a “just consequence” for their crimes [7]. After all, for what motive should one be unhappy and suffer, if the consumer society offers all the products and objects that supply and furnish all of your wishes and happiness that you deserve? The consumer society appears to deviate from the purpose of disciplinary bodies, which for many years was the focus [and remains so] of the main disciplinary institutions, such as: schools, families and even the State itself. The consumer society aims to control the minds of individuals and, this control takes place from childhood and perpetuates throughout the lives of the subjects. This administration of the spirit is crucial for people to adapt to the constant mutations of the rules established by the society of consumption and acts, convinced to have autonomy over their actions, when in reality, their actions are based within the limits imposed by the consumer society [8]. Viewing therefore that the consumer society provides certain freedom to people, after all, it shows itself as not in control over their individual bodies; individuals do have autonomy over their own bodies. With this, the consumer society causes people to believe that they are in control, in the administration of their lives and of their choices. However, the freedom to make choices is presented as an obligatory condition to choose something. In other words, you must choose an object, and that choice should be within the limits imposed by the consumer society. People choose what they buy, but do not choose the objects offered to them, for them to make their choice [9]. In this context, it is possible to assert that as soon as the consumer society carries out the administration of the spirit of the people, everything becomes a consumable object. “[...] Human beings, as well as objects, became expendable. With this, it is possible to perceive that the consumer society tends to treat individuals as true objects” [10]. In this sense, it is assumed that human relations are produced in the same way as the objects that are produced in that way; as well as these, human relations are also consumables [11].

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Inextricably and rather contradictory, it is possible to note that individuals often acquire a given product in order to economize time. People buy a dishwasher, for example, to save the time that they would lose doing this service. This is the materialization of time itself, paying, not for the machine itself, but for the time that would be spent on the service that, now, will be provided by the machine. However, despite this most practical life as provided by the products, it can be observed that people do not have more free time. What is observed is the transformation of free time into productive time, which will later materialize at the time of consumption. Given this, it is increasingly common to have a lack of communication between partners, between parents and children, and between siblings. People do not have the time to solve their family problems. Children spend much more time in day care centers and schools than with their families. But what is taking up so much of people’s time? Work. Individuals are very busy in the search for a good position in the labor market, for professional recognition, for excellent resumes and for good salaries. And when one gets all of this, one still keeps struggling to maintain that status [12]. One spends more time in this tiring journey, than with parents, with children, with partners, and with friends. This is the “embodiment of love”, people substitute the time that they spend with their children, with gifts purchased for them; parents will often satisfy the whims and desires of children with objects, to try and fill their absence in the lives of their children [13]. It is important to mention that relationships established in the virtual form, demonstrating fragility and the materialization of human relationships, can be made and undone with a single “click”. With this, it should be noted that human relationships are easy to be formed, with the same ease that they can be broken [14]. One’s own body has become materialized in a consumer society. Advertising exploits, in the most diverse of forms, the ideal body; all for perfection. The consumer society is that which says, through advertising, what is beautiful, what is fashionable, and what you should use. A slim body, young, without fat, and muscular, is exploited by the consumer society and is placed as the trendy body, that everybody wants [and must want], which means that people are willing to discard their own bodies that, in accordance with the established standards of beauty, are considered undesirable and without use. Even medicine has become an instrument to attain the perfect body; after all, areas such as dermatology and endocrinology have been constantly sought after purely for aesthetic purposes only. In this context, it is impossible to ignore the

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trivialization of plastic surgery, which before, served people who possessed deformities, caused by some poor combination of genes, and those who suffered some or any disfigurement due to an accident, which possessed scars or burns [15]. Currently, plastic surgery continues serving the same purposes mentioned, however, it has been widely used to modify the body, for the purpose of discarding an image that no longer has any use for not being within the expected standard [16]. The search for the perfect body is obsessive, so that this search consists of an investment. It is clear, then, that the freedom of the body is a myth in a consumer society; after all, that society exploits the body in a manner even more alienated than the exploration of the body as a work force [17]. The consumer society leads people to believe that they have autonomy over their own bodies [18]. But a consumer society is in constant transformation, and, what is fashionably, trendy today, will no longer be in a short period of time. Thus, those who fail to adapt to these changes and cannot be recognized as potential consumers are automatically excluded from society. 3. CONSUMPTION AND IDENTITY In shopping malls, on the streets, when they watch TV, when they listen to radio, or when they read newspapers and magazines, people are in constant contact with the standards of beauty and fashion. In this way, it becomes conducive to affirm that: Advertising treats people as if they were incapable of knowing what they want, and so, it shows these people what they want. In other words, advertising convinces the subjects that it knows them better than they know themselves. With that, advertising states what is beautiful, what is in fashion, what is appropriate, how people should dress, what they should eat, etc. [19].

With this, the idea is clear that advertising will always be offering products that teach people a new way of being themselves. In this way, individuals do not create their own identities in the consumer society; they buy the identity that is being sold in the products and are characterized and recognized according to the products and brands they consume. The concern to maintain status is not just tied to the idea of consuming, but is concerned about what to consume. It is in this context that brand names fit, after all, the brand is the name; it is the identification of the product and thus becomes

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an element for identification of those individuals who consume them. With this, it should be noted that the brand indicates the position of the consumer in the market and indicates whether the given subject is a potential consumer [20]. There are even specialty stores in each social group, so that, each group has its own fashion as dictated by the consumer society, which divides and recognizes people in accordance to what they consume. In this sense: In consumer society, one does not buy a car, but a Chevrolet, a Citroën, a Chrysler, a Ferrari, etc. In other words, a car does not say much in a consumer society, however, the brand speaks about the consumer [...]” [21].

Given this, it is clear that the “brand” assigns an identity to the person, identifying him or her as a potential member of the consumer society, according to the “brand” that he or she consumes. If the brand did not represent anything, there would not be many forgeries. In the search for their own identities, people become debased, in order to acquire new identities. Thereby, it is observed that the consumer society seems to respect and mold the identities of individuals, but it standardizes the subjects, and, in the end, everyone is subjected to the same standards of beauty, the same brands, and the same need to consume. In this context, one can say that: To practice the art of life, to turn life into a work of art, in our liquid, modern world, equates to being in a state of permanent transformation, redefining itself in a perennial form, becoming someone different from what was before then “becoming another person”, no longer to be what was, to break and throw away the old form, just like a snake does with its skin or as some mollusks do with their shells-rejecting and hoping to be swept away, one by one, the used personae, worn, too tight or not satisfactory enough, configuring to what they are to be compared with, that with new and improved offers and opportunities. [22].

It is clear, then, that one’s identity is nothing more than an object, consumable and disposable, in a consumer society. In this sense, the image that no longer matches the standard set is discarded and a new image is revealed; it is a new identity, a new way for you to be you [23]: If any part (the set of implements in everyday use, the current network of human contacts, one’s own body, or their public presentation of the self/identity of a person and their publicly presented image) loses its power to seduce the public or its market value, it must be cut out, thrown away, and replaced by a “new and improved spare part”, or just newer and still not

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used [24].

Given this, it is observed that people discard the body itself, that which is useless – fatty, acned, wrinkled, cellulite-ridden, etc.-and add to the body that which is trendy – siliconed, colored contact lenses, hair extensions, etc. – treating it in a way so as to buy an identity, the “I” that is fashionable. With this, it is clear that the body is also a consumable object in a consumer society. Social networks enable the modification of the identity of individuals. After all, they encourage people to have multiple profiles on the Internet, permit them to assume multiple identities or modify their own identities with a single “click”, all very simple. People feel the need to identify themselves with groups of networks, belonging to these groups and that feeling of belonging requires constant redefinitions of identity [25]. The adaptation of individuals, not to standards imposed, may lead them to be excluded, or blocked from social networks, too, with only one “click”. The consumer society, in infinite ways, erases the past and says, “What was left behind, has lost its usefulness”, and provides the possibility of a “fresh start” with a new trend and a new identity [26]. 4. THE IDENTITY FORMATION OF CHILDREN IN A CONSUMER SOCIETY It is at school, more specifically, in early childhood education, that children come into contact with another reality, outside of the view and direct protection of their parents. This cohabitation with other children is how the identity of the subject will be constructed. Firstly, there is a differentiation between boys and girls. In other words, from an early age, there exists a demand of certain behavior from boys, and of certain behavior from girls. Thus, the bodies of both girls and boys undergo, since very small, a process of feminization or masculinization, responsible for making them “little ladies” or “little brats”. This thorough process repeats itself until the violence and aggressiveness of the girl disappear, until she starts to behave like a “true” girl, delicate, organized and quiet, repressing her aggressiveness and noting her sweetness and obedience [27].

With that, one could say that children are taught early on, repression and embarrassment of their bodies to conform in the dominant expected patterns [28]. Thus, it appears that, from birth, children begin to be modeled and placed in a

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place within society, primarily, according to their gender. In this context, the requirements and the expected behaviors are differentiated according to the sex of the children, such as like: crying, playing with dolls, using the color pink, and primping, are the child-play of girls, the boys, already fit into the more aggressive type of play. In addition, teachers give more affection to the female children [29]. These moralistic discourses, religious and family, are still prevalent in societies such as that of Brazil, in which there is a strong presence of sexist thought and bias [not only prejudice about gender, but also racial prejudice]. Such societies differentiate the man from the woman, with the preaching that each has its own place in the social sector. Given that, despite the assertion of Bauman [30] that a consumer society does not recognize gender differences, it is observed that, maybe, in societies in which there is a strong presence of machismo, it is possible that there is no distinction as to gender. Contrary to this, in societies like that of Brazil, one can say that the consumer society accentuates even more, the existence of racial and gender differences. Although the consumer society offers children the freedom to be whatever they want – princesses, fairies, superheroes, warriors – since that, buying the products offered and with the promise to achieve their dreams and desires, it is observed that, since early childhood education, Brazilian children are taught to be whatever they want, but according to the gender to which they belong. In other words, the girls may be what only girls can be [princesses, fairies, brides, etc.] and the boys can be what only boys can be. With this bias, it is important to mention another factor of differentiation since early childhood education: color of skin. It is observed that the identity of children is built from the racial category to which they belong. Hence, note that: [...] black and white children have their identities established from the beginning of race, because they provide children with an ideal model of beauty and compare them to princesses and daughters, demonstrating the way how white teachers properly represent themselves as part of the white racial group and that influences the relationship with the other group, “the others” who are outside of that group [31].

Thus, it appears that affectionate nicknames such as “daughters” or “princesses” are directed to white children. After all, the standard of beauty imposed on the infantile universe itself is the standard of the white woman, blonde, skinny, with straight hair, and light eyes. Just notice the princesses of Disney to confirm this

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assertion. The first and only black Princess Walt Disney was shown in the movie “The Princess and the Frog”, released in 2009, in the United States, which in turn was not so successful as compared to other famous and known princesses, such as Cinderella, Sleeping Beauty, Snow White, among others, that have basically the same standard of beauty [32]. Thereafter, it is often seen that black children grow up suffering constant aggression, whether directly, with derogatory nicknames, or whether indirectly, with movies, with magazines and advertising that extol a standard of beauty that, naturally, is not theirs. Thus, black children always feel outside of the group of the most beautiful, as their identity will not correspond with the identity sold by the consumer society, they always consider themselves inferior to those girls that have the same standards as the princesses of Disney. [...] Very early on, so the black child builds for himself or herself, an image based on negativity and low value. Aesthetic values, whether relating to appearance, to the style of arranging their hair, or culinary preferences, of music, of forms of expression, must be taken into account and be a part of the daily life at school. Silence about the differences in the name of an alleged racial democracy is to deny the opportunity to discuss the growing impasse of this thematic issue [33].

In the same context of black children, obese children are the motives for numerous nicknames given by their colleagues and even family members. In this context for those children living in a consumer society, it is possible for one child to look at another child, who is not in conformity with the standards of beauty, and is considered to be ugly and, therefore be excluded from their circle of friendship. This exclusion of “different”, often, causes the emerging of nicknames, which downplay the body of those who are not similar to the models, actresses (and actors), and singers (singers) who are displayed on television and in magazines, producing what is referred to as bullying [34].

The much talked about bullying focuses on those who do not conform to the standard of beauty imposed by the consumer society. In this sense, it is not uncommon for news reports of children and pre-teens who acquire diseases like anorexia and bulimia. In this way, the increase in the number of children and preteens in salons and gyms, not counting the exaggerations made in child beauty pageants should be noted. Although childhood sociology recognizes the child as an active, creative subject, as a social actor, the consumer society inhibits any kind of creation. Children, as

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well as all members of the consumer society, do not build their identity, they must acquire an identity already imposed, if they want to be recognized as members of the consumer society and don't want to be victims of bullying, for example. The control that the consumer society exerts over the spirit of the people commences from childhood. As soon as they learn to read, or perhaps well before, the “shopping addiction” settles in children. [...] In a consumer society, everybody must be, should be, and must be a consumer by vocation (i.e. see and treat consumption as a vocation). In this society, consumption, seen and treated as a vocation, is both a right and a universal duty that knows no exception [35].

It turns out that, before thinking about being anything before “vocation” for anything, children are “consumers” and have a vocation for it. In other words, from an early age, children learn to change their own identity, according to the rules dictated by the consumer society, to become a member of this. 5. CONSUMER SOCIETY AND CHILDHOOD IN CONCEIÇÃO DA BARRA/ES In field research carried out in the municipality of Conceição da Barra, located in the North of the State of Espirito Santo [Brazil], which has a population of about 28,449 inhabitants, and an area of .907 1,184 km2, it was observed that despite being considered an inner city, not very well known, the children of Conceição da Barra are perfectly placed inside the consumer society. Interviews were conducted with 12 children [between 9 and 17 years of age], students from elementary schools, Setubal and Ram Astrogildo School Doctor Mario Vello Silvares and, with students at the only high school in the municipality, Joaquim Fonseca. As for gender, the interviews were composed of 9 girls and 3 boys, with the following age groups: two 9-year-old girls; a girl and a boy of 10 years; a girl and a boy of 13 years; a boy of 14 years; a girl of 15 years; three 16-year-old girls; and a 17-year-old girl. It was found, by means of interviews, that ideas on the disposability of objects, bought only to fulfill dreams and desires, are also present in the reality of the children of Conceição da Barra, who can be considered as potential consumers.

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It was observed by the research that even low-income children were so much a part of the consumer society, as children with better financial conditions in Conceição da Barra. In this sense, it is notorious to note the fact that children – in this work include, but are not limited to this concept of pre-teens and teens – of Conceição da Barra are contextualized with what is dictated by the consumer society, which if proven by the observation, that all of them have access to the Internet, and such access occurs so frequently, and that all are included in social networks, mainly on Facebook. This bias, found in the field research conducted in the months of July to December 2010, by Dr. Isabel Orofino, is worth mentioning. The survey was conducted with a sample group of 36 children from the popular classes [C, D and E], with ages ranging between 10 and 12 years, students of the Municipal School of Elementary Education Morro Grande [REFER Morro Grande], located in the State of São Paulo in Brazil. Through the research, data revealed: [...] a huge digital inclusion through the acquisition of computers (PCs) for household use computers with Internet access was achieved over the last three years by the families of the children. Around 80% of the children reported that the presence of the computer with Internet given in the last three years. Fifty percent claimed to have occurred in the last year. Also, it was found that 52 percent of children have cable TV in the domestic space, which expands the media repertoire. What, however, does not seem to decrease, is the frequency to broadcast TV channels, widely cited through preferred programs in the cultural consumption of children [36].

Thus, it appears that children are members of the consumer society, adapted to its demands; which remained evident in the research developed by Dr. Isabel Orofino in the year 2010 and, in the present work as well. It was possible to note, during the interviews, that some children accessed the Internet or watched television in their spare time, because they have no other leisure options: Interviewer [I]: What do you usually do in your spare time? M [15 years]Internet, watch television, sometimes going out, not too much because there is almost nothing more to do than the Internet itself. Here in the Barra there is nothing to go out and do, bad, bad; people go to a luncheonette and then go back home because there is no well-equipped square. We go there and the square is all dark, does not have things, like a theater, a designed project, in the summer time there is a music-band

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festival, but I do not do these kind of things, so there is nothing, there is no option.

When asked about which place he likes to go when he goes out, the interviewee R [16 years] replied: “We go to the square, because it is the only place that has [...]”. It was noted among those who were interviewed, they said they did not use their free time on the Internet or for watching television, their priority were games like: playing ball, drawing or using their toys. Those who made these claims, were the younger children, aged between 9 and 14 years old, still in elementary school. In addition to these children, some interviewees, a little somewhat older [one with 16 and another with 17 years], in high school, stated they are involved with the church. The interviewee of 16 years saw the church as an arranged commitment, not as an occupation of “free time”, but stated that in the little free time he has, he uses the Internet: K [16 years]: Well, my free time generally, I usually say it is on Monday afternoons because I have some household chores, in my case, my life is in the church [...] I: But when you have this free time, what do you usually do? K [16 years]: I often read, use the Internet, more Internet though.

J [17 years] considers the church as an occupier of his spare time, but made it clear, that he uses Facebook on his cell-phone and that uses the phone all the time to talk by messaging: I: What do you like to do in your free time? J [17 years]: I am a Jehovah's Witness, I like, equally, sometimes I have field service, we leave the House at home, I like to be in meetings. It is something that I like to take a long time to ... It is something I enjoy doing. I: Do you use the Internet much? J [17 years]: A lot ... A little. I am much attached to the cell-phone messaging, stuff like that. I use the cell-phone a lot. My parents and uncles say I am an addict, but I am not. They say that I cannot be without my phone, if you take it from me I will get sick. I: Does your phone accesses the Internet? J [17 years]: Yes, also. It does it all, Facebook, everything on my cell-

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phone. It even takes a little time to get into Facebook on the cell-phone, but not so much, is more messaging though, that I am very fond of. I: But, in the Internet what do you access more? J [17 years]: Facebook. I: During class, you leave it on? J [17 years]: In Facebook no, if I am in class, it is messaging.

With this, it is detected that there exists between these children and adolescents, the need of being in social networks, to be part of groups; they are always observing and being observed. One interviewee, R, 16 years of age, said more use Facebook to look at what other people “post” than to do their own posts. With the interviews, we also observed that some children do not have a computer at home. However, this does not interfere with access to the Internet, and this is with the use of friend’s computer, Internet Café or on their own cell-phone, because they all have cell-phones. When the question was posed about what they would like to buy, the answers were virtually the same. Children who did not have a computer at home, wanted to have a computer: IE: If you could buy something today, anything at all, what would you buy? J [17 years]: I would buy a computer and put in the Internet. JE [13 years]: A computer. M [15 years]: As for me? A notebook again.

Children, who had a computer, wanted to buy a tablet. It is worth mentioning, that all middle class children had a computer at home, which could be verified through the interviews, during which children themselves mentioned that were using the computer from their homes: I: Now, imagine that today you can buy anything, what would you buy? G [10 years old]: A tablet. C [10 years old]: Buy a tablet.

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A [14 years]: A tablet and a great headset.

It was also verified that some answers were directed to the desire to have a new cell-phone. Note that it is not the desire of having a cell phone, because all the children had cell-phones, but some wanted a newer model: I: If you could buy something for yourself, today, what you'd want to buy? AP [16 years]: Today? I think I would switch cell phones, because I don't want mine any longer. K [16 years]: For me, today? I want a new phone; I told my mom that I want a new phone. C [13 years]: Cell-phone. I: Cell-phone? And do you have any specific cell phone model you saw on the internet, or with a colleague, or on television? C [13 years]:Smartphone.

In addition to these respondents, it was possible to notice that younger children, with 9 years of age, preferred to buy toys, like dolls, what they saw on television, or electronic toys: I: If you could buy anything, today, what would you buy? T [9 years]: Toy. M [9 years]: I'd buy a doll, “Baby Alive”. I: Which toys? T [9 years]: Dolls and electronics. I: Do you like which types of electronics? T [9 years]: Toy: laptop and guitar. I: And where did you see these toys? T [9 years]: In a store. I: And where did you see this doll?

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M [9 years]: In the toy store. I: Have you seen it somewhere before? M [9 years]: I had seen it on TV advertisement [...].

It is possible to affirm that there is not much of a difference between the answers obtained by the various interviewees. Also to note, that the ages of the children do not interfere in their replies – with the exception of the two younger girls who wanted toys – after all, both the 10-year-old boy, as well as the 14 year-old, for example, if they could, would buy a tablet. It is clear, that consumption for the satisfaction of desires and dreams, and placement into the social networks, are present in the reality of all of these children. This can be seen, with the observation that children who do not have a computer, want to have a computer; to those which have a computer, want a tablet; to those who have a cell-phone, want a new cell-phone, because they are all dissatisfied with what they have. So, it turns out the feeling of disturbing insatiability in these children, and that is what feeds a consumer society, so that, it can be said that these children are potential consumers, inserted in a consumerist culture. The consumerist culture is marked by a constant pressure to become somebody else. Consumer markets focus on immediate devaluation of their old offers, in order to clear the area of the public demand for new offers to be filled out. Engendering dissatisfaction with the acquired identity and set of needs with which defines that identity. Changing of identity, discarding the past and searching for new beginnings, struggling to be reborn – all this is stimulated by this culture as a duty in the disguise of privilege [37]. The constant search by children for satisfaction of their desires with objects, reveals the relation with the constant search for identity. Thus, if a few years ago, the trend was to have a cell-phone and, today, the fashion is to have a smartphone, then one needs to purchase this new “identity” launched in the market; it is necessary to adapt to this change, because this is the rule of a consumer society. Given this, it is observed, by the interviews, that the children of Conceição da Barra are perfectly adapted to the consumer society. In relation to the two girls who said they wanted toys, note that they are also subject to the consumer society that does not want any whatever toy; they want a laptop and the doll, Baby Alive, which is one of the most expensive toys in Brazil.

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One of them wants a product initially made for adults, but that it is a “toy”, after all, the laptop is offered in the market as a toy for children. Thus, it appears that the market treats children as if they could certainly be granted self-determination, as adults, then as well, as their parents have a laptop, they too can also have one; it is worth mentioning that: [...] even small children can watch the same television shows as adults, thus becoming more familiar with the adult world at an earlier age than those of past generations. Children are becoming consumers at a younger age and are consuming adult products, like televisions, mobile phones, and advertisements [38].

The other 9-year-old girl said she wanted the doll, Baby Alive, which in turn is a fully humanized doll, that eats, drinks, does its physiological needs, and talks to the child, saying even, phrases that express sentiments like, “I love you”. Thus, the object is pretty much a real person, making the child feel like a “mother”, responsible for taking care of her “daughter”, which is nothing more than a doll; an object. It is worth mentioning, that this girl had seen the Baby Alive doll in television advertising from television. In this sense, it should be noted the influence of speech in advertising aimed at children and the importance of this tool to a consumer society, considering that “the advertising discourse dictates the ' rules of the game ', i.e., dictates the rules of a consumer society” [39]. When the speeches of advertisers turn to children, in view of their vulnerability, there is a power of influence and a creation of very big dreams and desires. In this way, children, from an early age, are hostages of the constant creation and frustration of their wishes by advertising, every time a new product is offered, promising a greater happiness. Finally, it is worth mentioning an allegation of one of the interviewees – school student Astrogildo Carneiro Setubal-to report the biggest problems that he observed at his school. In addition to the concerns about the structure and the qualification of teachers, calling attention to the fact that the 14-year-old boy pointed to bullying as one of the problems suffered by him at school: I: And among students, your colleagues, do you think you have problems that are generated there in school? A [14 years]: Yes, bullying, too, suffered a lot. I: In what sense? Bullying about what?

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A [14 years]:Bullying about sexual preference. I: Understood. A [14 years]: And nicknames. I: What nicknames? A [14 years]: Nicknames. I: You have already started to talk about this? A [14 years]: Already, but they do not give way. Last year I already spoke more than ten times and they did nothing about the student, talking, but not helping, then they said not to call. I: And this student, constantly, keeps talking about you, laughing at you? A [14 years]: Yes, as it was, but now, this year, he stopped a little. I stay quiet, staying in my corner, there in the chair, they stay in the back, then I am in the front, staying quiet in my corner. I: I Know. But, do you feel uncomfortable? A [14 years]: Feel.

In analysis of the student's answers, it identifies a specific type of bullying, which is, homophobic bullying. This leads to sexual orientation and gender identity, so that, according to UNESCO [40]: Schools, possibly, are among the most homophobic social spaces that exist. Studies conducted in a number of countries show that young people are more likely to suffer homophobic bullying at school than at home or in the community. Homophobic bullying affects not just students, gay, lesbian, bisexual, transgender or intersex. A study from Canada found a far greater number of students who reported being the target of homophobic bullying than the number that effectively were identified as LGBT.

Thus, it is clear that to be the target of homophobic bullying, it is not necessary to be gay, just being a boy who has a behavior that does not fit the characteristics of gender roles. This makes some of the previous conducted surveys clear. After all, despite talk that the consumer society does not recognize gender difference, it was evidenced

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that this is only true in societies in which there is a strong presence of machismo, which for example, does not occur in Brazil. In this way, it emphasizes the idea that schools, as well as most people, members or not of the Brazilian consumer society, still make the differentiation of gender, being that both man and woman, have their (his or her) own place in society. Given this, it is observed that the school is the main social area which delimits “feminine” and “masculine”, so that boys and girls should behave according to their gender. In this context, it should be noted that when a boy does not behave as a “boy”, according to the established standards, the nicknames, often unconsciously, given by educational professionals, referred to these children as “effeminate”, who have a “different way”, who are more “quiet” [41]. It is clear, then, that bullying suffered by the student consists of a reflection of the culture of education and of the society itself, so as to reject those who behave differently, taxing the standards of “man” and “woman” over the many years. This is not a widespread reality by the consumer society, since the same, does not recognize gender differences when it comes to acceptance of the subjects as consumers. However, in societies like that of Brazil, in which there is still a strong presence of machismo, the consumer society maintains and highlights even more such gender distinctions, even as a form of training and maintenance of its own identity. 6. CONCLUSION A consumer society promises, in steady form, the achievement of the dreams and desires held by individuals, however, this promise just seduces, insofar, as the complete satisfaction of desires remain unreachable. A consumer society appears to deviate from the purpose of disciplinary bodies, which for a long time was the focus of the main disciplinary institutions, so that, it aims to discipline and control the minds of individuals. This dominion over the spirit of people makes them act fully guided by stipulating to the consumer society, however, convinced that they are acting according to their own will. Thus, it appears that the consumer society gives a false freedom, therefore, permitting individuals to choose to consume whatever they want, as long as they consume, provided that this consumption is limited to the consumer society itself offering that which is to be consumed.

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From the moment that the consumer society exerts control over the spirit of its subjects, everything can be consumed in this society, including the proper identity of the subjects. With this, you might say, that the cycle of the consumer society consists in an infinite change of its own “I”. It is exactly in that same context, that children acquire their identities within the consumer society. However, to understand the identity formation of children in a consumer society, it is important to perceive that it is in school, more specifically, in early childhood education, that children begin to build their identity. This identity formation is guided, first of all, in the differentiation between the expected behavior of boys and girls and, in the difference of treatment that each one receives, according to the position they occupy [male or female]. Nevertheless, it is important to mention that, as a rule, the consumer society does not identify people according to gender, but according to what they consume. However, in environments marked by a strong presence of machismo and social and racial inequality, the consumer society further accentuates these differences, with the only goal, to encourage consumption. Another factor of differentiation, present since early childhood education, consists in skin color, and that the identity of children is built from the racial category to which they belong. Given this, it should be noted that there is a difference in the treatment accorded to children who fit into the prescribed standards of beauty and children who find themselves outside of these patterns; their own movies and children's toys make this differentiation between what is beautiful and admirable; as an example, it is possible to mention the princesses of Disney, herself. Thus, it should be noted that children who develop in a consumer society are also targeted by the standards of beauty, which is of a perfect and ideal body and he or she, who does not fit within these standards, is automatically excluded. In this context, it is important to mention that in the field research carried out in the municipality of Conceição da Barra, in the State of Espirito Santo [Brazil], it was observed that, despite being considered an inner city, not mentioned in the State, the children of Conceição da Barra are included in the consumer society. This is proven by the conducted interviews of the children, in which it was possible to note that all the children are joined in social networks, primarily, on Facebook, and most of them spend much of their time on the Internet [on Facebook, more specifically]. In addition, although among those children interviewed, some had better incomes than others, it was found that when asked about what they would like to buy, if they could, the children who had no home computer, claimed they wanted to buy

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a computer, those that had a computer, wanted to buy a tablet and those who had a cell-phone [highlight that all of them had a mobile], wanted a new cell-phone. It became evident that feelings of dissatisfaction and of disturbing insatiability present in these children, was and is extremely important in the development of a(the) consumer society. CONFLICT OF INTEREST The authors declares no conflict of interest, financial or otherwise. ACKNOWLEDGEMENTS Declared none. REFERENCES [1]

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In a consumer society, even one’s virginity seems able to be consumed, as occurred with Ingrid Migliorini, the 20-year-old from Sta. Catarina, who sold her virginity on the Internet for the sum of $ 1.5 million

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Some may say that “the Princess and the Frog” is much more recent than the others, so Tiana [the black Princess] was not as successful as the other princesses, who were longer in the infant universe. However, almost a year after the release of the movie, “the Princess and the Frog”, debuted in North American theaters the movie “Tangled”, also debuted from Disney. Coincidence or not, the Princess “Rapunzel”, white, blonde, straight hair and light eyes, seems to have had more success among children than the Princess “Tiana”

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Zahar Editor 2008; p. 73 [36]

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277

SUBJECT INDEX A Acts 165, 183, 188, 189, 190, 191, 194 criminal 194 terrorist 165, 188, 189, 190, 191 violent 183 Acts of terrorism 148, 185, 188, 191, 192, 194 result of 185 Administration 187, 191, 231, 232, 242, 244, 245, 246 penitentiary 242, 244, 245, 246 public 187, 191, 231, 232 American convention 110, 228 Anthropocentrism 1, 9 Armed terrorist gang 185 Assistance, psychological 177, 178 Associative movement 42, 44 Autonomic bodies 94 Autonomous community 133, 135, 136

B Basic founding fact 87, 88, 90, 91, 96 Bolivian state and constitution 90 Bolivia’s constitution 82, 86, 87, 88, 90, 91, 92, 96 Bullying 255, 263, 264, 270, 271, 272

C Children 63, 64, 134, 261, 262, 263, 273 black 263 disabled 63, 64 evolving capacities of 63, 64 identity formation of 261, 273 rights of 63, 64, 134 white 262 Citizens 18, 34, 50, 85, 92, 103, 104, 105, 108, 117, 118, 119, 120, 121, 124, 125, 138, 139, 140, 141, 182, 184, 185, 188, 192, 195, 201, 213, 233 effective equality of 138, 139

non-vulnerable group of 117, 118 Civilian society 89, 90 Civil proceedings 158, 159 Civil servants 138, 159, 185, 244 Communitarian economy 95, 96 Community 18, 19, 23, 33, 49, 58, 64, 93, 95, 113, 114, 126, 132, 133, 164, 166, 168, 172, 174, 176, 217, 220, 230, 252, 271 affected 164, 166, 168, 172, 174, 176 Community action 123 Community policies 123 Comparative approach 76, 77, 78, 79 Compensatory approach 181, 182, 187 Comprehensive reparation 181 Constitution 3, 17, 18, 29, 31, 33, 34, 35, 36, 37, 74, 82, 83, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 118, 140, 208, 212, 220, 221, 222, 232, 233, 234, 241, 242 new 85, 86, 87, 89, 96 political 83, 87 Constitutional amendment 70, 73, 74, 213 Constitutional competences 211, 212, 216, 221 Constitutional courts (CC) 4, 35, 36, 89, 90, 183, 185, 186, 213, 216, 218, 220, 221, 243 Constitutionalism 211, 212 Constitutional issues 37, 221, 222 judicial review of 221, 222 Constitutional order 186, 188, 189, 218 Constitutional provisions 70, 215 Constitutional safeguards 218, 219, 220 Constitutional state 82, 83, 85, 86, 88, 156, 160, 181 Constitutional systems 36, 37 Constitutional text 3, 29, 34, 35, 36, 37, 85, 86, 90, 91, 241 Constitutional traditions 211, 212, 215, 216, 217, 218, 221 common 211, 212, 215, 221 Constitutional values 85, 86, 91, 218 Constitution of Bolivia 82

J. Alberto del Real Alcalà (Ed.) All rights reserved-© 2017 Bentham Science Publishers

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Constitution states 76, 232 Consumer society promises 256, 257, 272 Cultural diversity 86, 87, 89, 90, 91, 92, 93, 94, 95 Cultural plurality 82, 83, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 constitutional value of 82, 88, 89, 92 expression of 89, 92, 93, 95 moral content of 91 Cultural rights 69, 110, 227, 228, 229, 231, 232, 233, 234 Culture, legal 35, 36

D Deaf community 15, 16, 32, 64 Decentralisation 83, 85, 94 Decentralisation processes 82, 83, 85 Decision-making process 49, 50, 53, 63 Decision support systems 53 Diagnostic criteria 167, 169, 170 Differentiated protection 182, 186, 189, 190 Dignity 1, 2, 3, 4, 5, 6, 7, 8, 9, 48, 50, 54, 55, 86, 90, 193, 194 collective 86, 90 inherent 1, 8, 48, 50, 54, 55 ontological 5, 6 personal 50, 86, 90 principle of 2, 3 requirements of 4, 7 respect for 50, 193, 194 understanding of 5, 8, 9 Dignity of persons with disabilities 26, 52 Dimensions 181, 193, 194 personal 181, 194 public 181, 193, 194 Disabilities 14, 15, 16, 17, 18, 20, 22, 26, 27, 29, 31, 40 41, 44, 45, 46, 47, 51, 52, 59, 60 intellectual 20, 26, 41 medical model approaches 47 medical model of 44, 59 mental 51, 52 notion of 16, 31, 46 person’s 27

J. Alberto del Real Alcalà

person with 40, 45, 46, 47, 60 rights of people with 15, 29 treatment of 14, 17, 18, 22, 29 Disabilities subject 61 Disabled people's international (DPI) 43 Disabled persons 25, 32, 41, 53, 57, 58, 59 Discourse 1, 2, 4, 5, 9, 10, 14, 15, 19, 20, 21, 22, 23, 30, 31, 36, 40, 101, 132 legal 14, 19, 20, 22, 30, 36 Discourse of rights 6, 16, 25, 31 Discourse on rights 1, 2, 6, 9 Discrimination 17, 24, 31, 34, 37, 42, 44, 47, 48, 49, 52, 54, 55, 56, 57, 59, 61, 62, 63, 64, 100, 103, 104, 106, 108, 109, 110, 111, 112, 114, 118, 119, 120, 121, 124, 132, 134, 140, 192, 215, 216, 228 multiple forms of 59, 61, 62 prohibition of 34, 47, 56, 57, 215, 216 Discrimination against women 120

E Economic crisis 37, 126, 141, 201, 202, 203, 204, 205, 208 Economic freedoms 218, 219 Economy, plural 95, 96 Education, early childhood 261, 262, 273 Effective equality of citizenship 120, 121 Effective exercise 41, 42, 47, 49, 56, 57, 58, 61, 107 Elimination of discrimination against women 110, 111 Emergency personnel 168, 172, 173 Empirical root 89, 90 Empiric reality 152, 153 Enforceability 213, 227, 228, 232 Equality 24, 34, 55, 56, 59, 61, 75, 117, 118, 123, 124, 129, 131, 140, 192, 212, 215, 216 initial situation of 75 material dimension of 59 principle of 24, 34, 55, 117, 118, 129, 140, 192, 216 promote 123, 124, 131 requirement of 56, 61

Subject Index

substantive 212, 215, 216 Equality policies 114, 136 Equality units 135 European charter 3, 211, 213 European charter of fundamental rights (ECFR) 3, 211, 213, 214, 215, 216, 218, 219, 220, 221 European constitutional judicial review 211, 212 European convention on human rights (ECHR) 52, 53, 139, 214, 215, 220, 221 European convention on human rights law 139 European court of human rights 221, 241 European court of justice (ECJ) 47, 211, 212, 215, 216, 217, 218, 219, 220, 221 European economic community (EEC) 123, 125, 213 European integration process 211, 213, 216 European society 195, 211 European union 46, 51, 123, 125, 211, 212, 214, 215, 216, 217, 218, 220, 221 Exploit 75, 77, 78, 229 Exploitation 62, 104

F Field research 255, 256, 264, 265, 273 Forced evictions 233, 235, 236 Founding fathers 211, 213 Functions 5, 23, 25, 94, 103, 158, 159, 168, 174, 187, 214, 231, 232, 243, 249, 250, 251, 252 epistemic 158, 159 rhetoric 158, 159 Fundamental freedoms 48, 49, 54, 55, 57, 58, 60, 62, 111, 120, 217, 220 Fundamental law 86, 88, 92 Fundamental rights 1, 3, 5, 7, 9, 34, 37, 41, 43, 48, 49, 50, 51, 52, 53, 69, 85, 87, 88, 89, 90, 92, 95, 140, 141, 154, 155, 184, 191, 211, 212, 213, 214, 215, 217, 218, 220, 221, 222, 232, 233, 241, 242, 249, 250, 251 Fundamental social rights of workers 213, 214

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G Gender differences 262, 271, 272 Gender equality units 135 Gender impact 127, 128, 131, 134, 135, 141 positive 131 Gender impact assessment 124, 126, 127, 128, 130, 138 Gender impact assessment reports 126, 133, 134, 135, 140 Gender impact report 125, 128, 129, 130 Gender issues 126, 132 Gender mainstreaming 118, 119, 122, 123, 126, 128, 130, 132, 133, 140, 141 Gender perspective 62, 100, 113, 122, 123, 127, 131, 132, 135, 136 Gender violence 107, 120, 121, 140, 141 structural 140 General observation 229, 231, 233, 235 General population 56, 164, 166, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177 Governing council 133, 134, 135 Government authorities 85, 89, 92, 94 Groups 147, 187, 190, 191 political 187, 191 special 147 terrorist 190

H Health problems, mental 165, 166 Holders of rights 105, 106 Human dignity 2, 6, 8, 31, 86, 90, 91, 154, 217 contents of 7, 10 overarching value of 90, 91 position of 2, 6, 8 protecting 154, 217 protection of 91, 217 value of 31, 86 Humanity 4, 6, 7, 58, 110, 112, 118, 119, 121 Human life, dignified 9, 25 Human rights 49, 55, 59, 102, 105, 107, 111, 124 common 49, 59 first 102, 105

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universal 55, 107, 111, 124 Human rights and fundamental freedoms 48, 49, 54, 55, 57, 58, 60, 62, 120, 220 Human rights discourse 5, 15, 16, 30, 31, 32, 40, 42, 48, 49, 50 Human rights theory 22, 47, 50

I Identity, linguistic 18, 33, 64, 65 Independence of persons with disabilities 50 Independent life, movements for 15, 26, 32 Indigenous nations and peoples 82 Indirect victims 164, 166, 167, 173, 174, 175, 177 groups of 166, 173, 174, 175 Inequalities 47, 57, 61, 72, 75, 76, 121, 123, 136, 241, 243 economic 76 Injured survivors 169, 170, 171, 175 Injuries, and causes of death (ICD) 68, 70, 71, 72 Integration 30, 34, 35, 49, 56, 89, 112, 123, 125, 132 Intellectual diversity 26, 27 International classification of impairment, disability, and handicap (ICIDH) 68, 70, 71, 72 International convention 17, 18, 23, 29, 30, 139, 228 International covenant 54, 110, 228, 229, 233 Intersectionality 118, 119

J Judge of guarantees 240, 249 Judicial control 125, 126, 137 Judicial decision 153, 154, 156, 157, 158, 160 Judicial proceedings 147, 149, 150, 151, 152, 153, 156, 159, 160 Judicial protection 211, 212, 219, 220, 222, 233 adequate 211, 212, 222 Jurisdictions 95, 186, 213, 216, 221

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Justice 10, 82, 87, 88, 90, 95, 100, 101, 115, 148, 149, 159, 160 constitutional 82, 87, 88, 95 higher value of 148, 149, 159, 160 social 10, 90, 100, 101, 115 Justice system 86, 89, 91, 94, 95 constitutional 89, 95 Justice theory 1, 2, 75 Justified moral aspirations 154, 155

L Labour market 124, 131, 202, 203, 204, 205, 207, 208 Law 117, 127, 129, 134, 136, 213, 215, 216, 217, 218, 220 draft 127, 129, 134, 136 national 117, 216, 217, 220 primary 213, 215, 217, 218 Lawmakers 181, 182, 184, 185, 186, 187, 188, 189, 190, 191, 194 Legal capacity 14, 19, 20, 21, 23, 24, 26, 32, 33, 40, 50, 51, 52, 53, 54, 61 equal 32, 33 Legal capacity of persons with disabilities 19, 51, 52, 53 Legal impact analysis 128, 129, 139 Legality of regulations 125, 126, 137 Legal norm, appropriate 156, 160 Legal pluralism 94, 95 Legal protection, effective 24, 156, 159 Legal system 2, 3, 14, 18, 34, 35, 36, 37, 41, 45, 69, 82, 85, 86, 88, 89, 91, 94, 95, 108, 119, 133, 147, 148, 155, 156, 160, 184, 220 Legal values 25, 85, 88, 91, 152, 211, 213, 221 higher 91 Legislation 52, 54, 63, 70, 73, 124, 129, 182, 187, 192, 243

M Memorandum 128, 129, 133, 139 Mental disorders 53, 165, 167, 168

Subject Index

Mental health 164, 166, 171, 172, 177 Mental traits 44, 45, 46 Meta-analysis 164, 166, 167, 168, 169, 172, 174 Military combat personnel 176 Model 27, 44, 53, 70, 71, 72, 73, 74, 82, 88, 91 biomedical 70, 71, 73 biosocial 68, 70, 72, 73, 74 new 27, 44, 53, 72, 82, 88, 91 Model of diversity 15, 24, 29, 30, 31 Model of state 87, 88, 89, 90, 97 Moral agents 9, 14, 19, 22, 23, 25, 37, 49, 50 Moral root 89, 90 Multidimensional conceptions 45

N Narrative literature review 164, 176 National constitutional case law 216 National courts 47, 138, 184, 193, 212, 216, 217, 219, 220, 221, 222 National judge 219 National plurality 82, 86 Nations 83, 84, 86, 87, 89, 90, 92, 93, 94, 95, 96, 107, 133 indigenous farmer 86, 87, 90, 92, 93, 95, 96 indigenous originary farmer 94, 95, 96 Nature 5, 9, 46, 88, 103, 104, 187, 194, 215, 217, 222, 232, 251, 252 Networks, social 255, 256, 261, 265, 267, 269, 273 Non-application 42, 139, 216, 217 Non-discrimination 14, 15, 24, 29, 40, 54, 55, 56, 57, 59, 140 Norms, constitutional 36, 85, 94, 95

O Obligation of states parties 63, 64 Ombudsman 240, 242, 247, 249, 251 Organic Law 136, 184, 185, 186, 190, 191 Organisation, terrorist 185, 186, 191

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P Parliament 126, 133, 187, 242 Penitentiary centers 242, 243, 244 Personality, victim’s 155 Personal mobility 49, 51 Personal property 76 Personal situation 19, 74 Personal tragedy 69, 74 Personal traits 21, 46, 54, 57, 61 particular group-identifying 46 Persons with disabilities 25, 41, 42, 43 44, 45, 46, 47, 49 aspiration of 43, 49 situation of 25, 41, 42 Perspective, comparative 76, 77, 78 Phase, pre-democratic 182, 184 Plurinational constitutional court (PCC) 89, 95, 97 Plurinational State 82, 87, 88, 91, 92, 96 model of 92, 93, 96 Political powers 93, 94, 119, 151 Political representation 82, 88, 92, 93 Principle of mainstreaming 124, 125, 126, 137 Principles 26, 33, 43, 50, 55, 60, 85 92, 94, 107, 185, 212, 214, 215, 216, 217, 220 constitutional 85, 92, 94, 185, 212 fundamental 43, 55, 107, 214, 215, 220 general 26, 33, 50, 60, 212, 214, 216, 217 Prison disciplinary 249 Prison disciplinary proceedings 248, 249 Prison oversight judges 242, 249, 250, 251 Prison sentences 241 Prison system 250, 251 Private field 104, 236 Procedural rights, fundamental 154, 156 Programme of actions 111, 112, 120 Protection 191, 203, 204 comprehensive 191 social 109, 203, 204 Protection of human rights and fundamental freedoms 220 Protection of women and children in emergency 110

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Provisions 125, 127, 128, 129, 135, 137, 138, 140, 185, 187, 188, 194 administrative 125, 127, 129, 137 draft 135 regulatory 127, 128, 138, 140, 185, 187, 188, 194 PTSD 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176 delayed 176 frequency of 172, 175 prevalence of 166, 167, 168, 169, 170, 171, 172, 173, 174, 175 PTSD in victims of terrorist attacks 176 Public dimension of harm 181 Public dimension of victimhood 189 Public policies 32, 49, 59, 64, 70, 72, 74, 118, 119, 124, 128, 129, 139, 231 Public recognition 181, 188 Punitive approach 181, 182, 194

R Real state agencies 227, 233 Recognition, constitutional 87, 235 Recognition and integral protection for victims of terrorism 192 Regional development plans 125 Regulatory development 128, 129, 134 Rescue personnel 164, 172, 173, 174, 176, 177 Resources, economic 114, 232, 234 Rights of women and girls 107, 109 Rights system, human 40, 42, 48, 62, 63 Right to legal capacity for persons 54 Ruling, judicial 150, 158, 160

S Sanctions 184, 186, 248 Security measures 240, 241 Sex-gender systems 119 Sexual orientation 117, 118, 120, 271 Significant reduction 164, 175 Social and cultural rights 69, 110, 227, 228, 229, 233 Social disability model 40, 44, 45, 47

J. Alberto del Real Alcalà

Social inclusion promotion 68, 69, 73 Social life 35, 48, 53, 56, 58, 60, 63, 71 Social model 7, 15, 17, 22, 24, 30, 31, 34, 35, 47, 59, 61, 68, 70, 71, 95, 96, 202 Social model of disability 15, 17, 22, 29, 30, 36, 37, 44, 59, 60 Social policies 76, 124, 201, 203, 205, 208 generous 205, 208 Social rights protection 214, 215 Society 58, 59, 78, 83, 190, 231 civil 83, 190, 231 fair 78 inclusive 58, 59 Spanish constitution 3, 29, 34, 35, 184 Spanish data protection law 245 Spanish lawmakers 181, 184, 187, 189, 190, 193, 194 Spanish legal system 17, 18, 30, 127, 137, 140 Spanish society 147, 148, 187, 195 Spanish society to victims of terrorist violence 187 Spanish State 139, 182, 183, 190 Special protection 34, 147 Spheres 15, 16, 43, 48, 53, 56, 58, 60, 93, 104, 150 Spouses 104, 109, 188, 235 State 34, 35, 41, 63, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 93, 94, 95, 96, 97, 104, 139, 150, 151, 157, 158, 159, 183, 189, 190, 193, 195, 206, 230, 231, 232, 233, 234, 235, 252, 256, 257, 264, 265, 273 democratic 150, 151, 157, 159, 193 plurinational/pluricultural 84 social 87, 91, 95, 96 State bodies 92 State party 132, 235 States’ obligation 59, 63, 64 Substitution model 24, 27 Support model 24, 27

T Temporary jobs 131, 203, 204, 207 Territorial framework 93

Subject Index

Terrorism, crimes of 148, 181, 183, 185, 189, 190, 194 Terrorist actions 166, 182 Terrorist attacks 164, 165, 166, 171, 173, 176, 177, 178 indirect victims of 171, 176, 178 massive 165, 176 psychopathological consequences of 164, 171, 173 psychopathological repercussions of 165, 166, 176, 177 Terrorist crimes 183, 184, 186, 189, 190, 191 justification of 190 Terrorist violence 181, 182, 187, 190, 194 escalating 181, 182, 194 Transparency 240, 241, 242, 243, 252 Treatment 24, 25, 32, 46, 110, 124, 125, 127, 128, 129, 137 contemporary 24, 25 equal 32, 46, 110, 124, 125, 127, 128, 129, 137

U Unconstitutionality 234 UN convention of the rights of people with disabilities (UNCRPD) 69, 70, 72, 73, 74, 75 Universal accessibility 17, 26, 30, 32, 33, 35, 37, 47, 60, 61

V Victimhood 189, 192 Victimisation 188, 189, 192 Victims 148, 159, 164, 165, 166, 170, 171, 173, 174, 175, 176 direct 164, 166, 170, 171, 174, 175, 176 injured 164, 170, 171, 173, 175 injured/dead 175 mortal 164, 165, 170, 171, 175, 176

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rights of 148, 159 Victims of crimes 182, 186 Victims of terrorism 147, 148, 181, 182, 187, 191, 193, 194 legal status of 147, 148 protection of 187, 191, 193 support for 191 survivors and relatives of 181, 182, 187, 194 Video cameras 243, 245, 246 Video surveillance 243, 244, 245, 246, 247 Vienna declaration and programme of action 111, 112 Violent crimes 147, 159, 181 Vulnerable persons 181

W Woman 102, 103, 104, 105, 118, 121, 204, 206, 234, 262, 272 Women 62, 105, 111, 113, 114, 119 122, 125, 127, 132, 137, 140, 141, 202 advancement of 122, 140 development of 111, 140 discrimination of 113, 119 effective equality of 127, 137, 141 empowerment of 62, 114 exclusion of 105, 132 integration of 114, 125, 202 Women, protection of 111, 112 Women´s rights 100, 101, 102, 105, 108, 109, 111, 112, 113, 114 Women and children 59, 110 Workers 170, 173 clean-up 170 construction 170, 173 Working conditions 124, 201, 208 Working poor, phenomenon of 201 Working poverty 201, 203, 204, 205, 206, 207, 208