The case of Ruben Calleja Loma and Alejandro Calleja Lucas v. Spain. Views of the Committee on the Rights of Persons with Disabilities dated August 28, 2020. Communication No. 41/2017.
In 2017, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Spain.
As seen from the text of the Considerations, in September 2009, Ruben, who was ten years old at that time, began studying under the compulsory primary education program in the 4th grade of the ordinary state primary school named after him. Antonio Gonzalez de Lama of the city of Leon, where he studied earlier, accompanied by a technical and educational assistant. Up to this point, Ruben had integrated well at school, both in relationships with classmates and with teachers. However, since the beginning of his studies in the 4th grade, Ruben has been assigned a tutor X. He treated him with hostility because of his disability, namely, discriminated against him, did not pay attention to him and mistreated him. According to the testimony of the mothers of two of the author's classmates, given on January 23, 2012 in the Administrative Court No. 1 of Leon, the tutor grabbed Ruben by the neck, threatening to throw him out of the window, and also hit him with a chair. The tutor told Ruben's parents that he was "non-contact and dangerous," and they were advised to transfer him to a correctional educational institution. In addition, the author was physically assaulted by Teacher Y., who slapped him several times. Although Ruben's parents complained about these actions to the Provincial Education Department, no verification was carried out on them (paragraph 2.1 of the Considerations).
The Committee's legal position: In accordance with article 24, paragraph 1, of the Convention on the Rights of Persons with Disabilities, States parties should ensure the realization of the right of persons with disabilities to education through the creation of an inclusive education system at all levels, including preschool, primary, secondary and higher education, vocational and lifelong learning, extracurricular and social activities and for all students, including those with disabilities, without discrimination and on an equal basis with others." The Committee also recalls that "ensuring inclusivity involves a process of systemic transformation, including changing and adjusting the content, methodology, approaches, structures and strategies in the field of education in order to overcome barriers in order to provide all students of the appropriate age with equal opportunities to receive education based on active participation and create conditions that are most meet their needs and preferences. In addition, the Committee notes: "the right to non-discrimination includes the right not to be segregated and the right to be provided with reasonable accommodation, and it should be understood in the context of the obligation to provide an accessible educational environment and reasonable accommodation" (paragraph 8.4 of the Views).
The Committee recalls that "in order to implement article 4, paragraph 1 (b), of the Convention on the Rights of Persons with Disabilities, States parties should take all appropriate measures, including legislative ones, to amend or repeal existing laws, regulations, customs and practices that discriminate against persons with disabilities and violate article 24. There Where necessary, discriminatory laws, regulations, customs and practices should be abolished or amended systematically and within a specified time frame" (paragraph 8.7 of the Considerations).
In accordance with article 15 of the Convention, no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment, and States parties shall take all effective legislative, administrative, judicial or other measures to ensure that persons with disabilities are not subjected to torture or cruel, inhuman or degrading treatment or punishment. According to article 17 of the Convention, every disabled person has the right to respect for his physical and mental integrity on an equal basis with others (paragraph 8.12 of the Considerations).
Taking into account article 4 of the Convention, States parties have a general obligation to take all necessary measures to ensure and promote the full enjoyment of all human rights and fundamental freedoms by persons with disabilities (paragraph 8.15 of the Views).
The Committee's assessment of the factual circumstances of the case: in connection with the allegations of a violation of article 24 of the Convention on the Rights of Persons with Disabilities, the Committee noted that, according to the authors, the administrative decision to enroll Ruben in the correctional educational institution "Mother of God of the Sacred Heart of Jesus Christ", supported by the courts of the State party, violated his right to inclusive education. The Committee took note of the authors' statements that this decision was made on the basis of conclusions prepared by the School Guidance Department upon request and in close cooperation with tutors who were employees of the ordinary educational institution where he studied - the very employees who allegedly discriminated against and abused Ruben. The Committee also noted that the State party had not responded in any way to these allegations. In addition, the Committee noted: according to the authors, there is no information in the submitted materials that the State party's authorities conducted a reasonable assessment or in-depth and detailed analysis to determine Ruben's educational needs and reasonable accommodation measures necessary to enable him to continue his studies in a regular educational institution. In this regard, the Committee pointed to the statement contained in the decision of the Leon Administrative Court No. 1 that "an acceptable solution in various situations of the educational process can only be found individually and only by specialist teachers who have been working with [Ruben] for a long time." In addition, despite the fact that up to that point the administration provided support for Ruben's inclusive education in a regular school, however, as the child's learning ability and behavioral development changed, the moment came when the administration could no longer provide the necessary guarantees with the means at its disposal, which "are available only to the extent in which there are". The Committee also noted that at the beginning of the 2010/11 academic year, Ruben was not accompanied by a technical and educational assistant, since the tutor did not consider it necessary, that such an assistant was brought in only at the request of Ruben's parents later and that she stated the following - the tutor assigned to the child subsequently "completely withdrew himself and stopped studying Ruben" (paragraph 8.2 of the Considerations).
The Committee stressed that the judicial authorities of the State party did not seem to attach importance to the conclusion of the clinical psychologist G.K., according to which the reason for Ruben's difficulties in studying in a regular public school was the lack of accompaniment during the educational process and the discriminatory and hostile attitude that the author faced. The Committee also noted that there was no information in the available materials that all possible reasonable accommodation measures had been provided that would have allowed the author to study in a regular educational institution (paragraph 8.3 of the Considerations).
The Committee considered that the administrative decision to enroll Ruben in a correctional educational institution was made without taking into account the opinion of his parents, without conducting a valid, rather than formal analysis of the possibility of taking reasonable adjustment measures that could further ensure his inclusive education in the regular education system, without taking into account the conclusion of a clinical psychologist and information from a technical and educational assistant, as well as without taking into account the authors' allegations of discrimination and abuse that Ruben was subjected to in the ordinary educational institution he attended, This constituted a violation of his rights under article 24, considered separately and in conjunction with article 4 of the Convention (paragraph 8.8 of the Views).
With regard to the allegations under article 23 of the Convention, read in conjunction with article 4 of the Convention, the Committee took note of the authors' claim that the State party violated their right to family life, since its authorities requested that the parents be held accountable for evading family responsibilities because they did not agree to give his son was sent to the correctional educational institution "Mother of God of the Sacred Heart of Jesus Christ". The Committee took into account the authors' claim that if the application was granted, the parents could lose parental rights to their child. The Committee also took note of the fact that, according to the information available in the submitted materials, on May 23, 2014, the court applied a preventive measure in the form of bail in the amount of 2,400 euros to each of Ruben's parents until the end of the trial and warned about the seizure of their property in case of non-payment of bail. The Committee noted that this preventive measure was lifted only almost a year later, on April 20, 2015, after the parents were found innocent. The Committee considered that making such a deposit was an excessive financial burden for Ruben's parents, and this increased the tension generated by the circumstances of the struggle for their child's rights to inclusive education, and undoubtedly had a negative impact on the well-being of each of them individually and the family as a whole (paragraph 8.9 of the Considerations). The Committee recalled that in its report on the investigation into Spain conducted in accordance with article 6 of the Optional Protocol, it urged the State party "to prevent the prosecution of parents of students with disabilities who demand respect for their children's right to inclusive education on an equal basis with others, under the article on avoidance of family responsibilities" <25>. The Committee concluded that the State party had failed to comply with its obligations under article 23, considered separately and in conjunction with article 4 of the Convention (paragraph 8.10 of the Views).
The Committee also took note of the authors' allegations that in the 2009/10 and 2010/11 academic years, Ruben suffered acts of discrimination and abuse at a regular State primary school named after him. Antonio Gonzalez de Lama of the City of Leon, who endangered his personal integrity and diminished his dignity in violation of the rights under article 15, considered in conjunction with article 17 of the Convention. In particular, the Committee noted that: (a) according to the testimony of the mothers of two of Ruben's classmates, given in the Leon Administrative Court No. 1, the tutor grabbed the author by the neck, threatening to throw him out of the window, as well as hit him with a chair; (b) the authors claim that Ruben was physically abused by one of the teachers, who gave him several slaps in the face (paragraph 8.11 of the Considerations).
The Committee noted that the decision of the High Court of the Autonomous Community of Castile y Leon recognized that "indeed, the situation at the school in recent years did not meet the needs of [the author], some teachers did not show the slightest willingness to cooperate, in other words, the school did not take prompt and appropriate measures in connection with the actions of teachers (if we admit, at least for speculative purposes, the serious accusations made against several teachers [...]) and, perhaps, we can even talk about abnormal work; However, such were the circumstances at the school where the child studied and received assistance" (paragraph 8.12 of the Considerations).
The Committee also took note of the author's claim that the Leon Provincial Prosecutor's Office, to which they had twice filed complaints about these facts, had decided not to take action on the complaint. In particular, the Committee stressed that in the second complaint, as a new circumstance, the authors included information from the decision of the High Court of the Autonomous Community of Castile y Leon on the statements of the mothers of the author's classmates who testified about the abuse of the author, and the statement of this court that "it may even be possible to talk about abnormal work" schools. The Committee considered that, based on the available information, the State party's authorities were obliged to conduct an effective and thorough investigation of these allegations, which, however, was not done (paragraph 8.13 of the Views).
The Committee's conclusions: The State party has not fulfilled its obligations under articles 7, 15, 17, 23 and 24 of the Convention, considered separately and in conjunction with article 4 of the Convention.