The repercussion of the Convention on the Rights of Persons with Disabilities in Brazilian courts/A repercuss

AutorPeruzzo, Pedro Pulzatto

Introduction

After centuries of exclusion and stigmatization of persons with disabilities, this socially differentiated group (1) has achieved a legal status that meant a real break of paradigms, both in the international order and in the Brazilian legal order. The United Nations Convention on the Rights of Persons with Disabilities (CRPD), signed in New York on March 30, 2007, affirmed the social model of disability and formally ensured equality in the right to citizenship for this group of people. This concept comprehends disability as a long-term impairment that, in interaction with attitudinal or physical barriers, can hinder the full and effective participation of the persons with disabilities in society on equal terms with others (article 1 of the Convention), rather than placing the responsibility for this barriers on the persons with disabilities themselves, as previous concepts perceived.

In Brazil, the UN Convention was promulgated, according to the procedure established by the article 5, paragraph 3, of the 1988 Constitution (with the status of constitutional amendment), on August 25, 2009, through the Decree 6,949 (2). This enactment occurred in conjunction with the promulgation of the Optional Protocol, recognizing the competence of the Committee on the Rights of Persons with Disabilities to supervise and regulate the country's compliance with the terms of the Convention in specific cases involving possible affronts to the rights of persons with disabilities. Consequently, the Brazilian Inclusion Law (Federal Law 13.146, of July 6th, 2015), which was drafted in accordance to the determinations of the Convention, implemented a series of measures to ensure a more extensive inclusion for persons with disabilities in Brazilian society, following the system of protection to human rights established by the Federal Constitution of 1988 (3).

The Brazilian State has sovereignly decided to submit to the guidance and agendas of the referred specialized body by promulgating the Convention and the Optional Protocol, thus recognizing the competence of the Committee and incorporating the Convention in the national legal system. Therefore, the present research seeks to analyze how (or if) the Brazilian Courts, specifically the courts that have jurisdiction to rule on cases based on treaties, i.e. the Federal Courts, apply the Convention and the Committee's guidelines and recommendations. Thus, we performed a jurisprudential research (4) with focus on the decisions of the Tribunais Regionais Federais (TRF) (5), which are collegiate courts that represent the second tier of the Brazilian Federal Justice, thus all of the analyzed cases have already been judged by a singular judge in the first tier of the Federal Justice before being analyzed by the collegiate body.

We chose the TRFs for this research, since the article 109 of the Brazilian Constitution establishes that the Federal Justice is responsible for prosecuting cases based on a treaty or contract between Brazil and a foreign state or international body. International treaties are legal documents formally incorporated into the Brazilian legal system. Therefore, all judges from all spheres of jurisdiction have the duty to apply the treaties. Likewise, having recognized the competence of courts or other international bodies, such as the case of the referred Committee, the judges also have the duty to honor the international cooperation commitments signed by Brazil in these areas. Therefore, both federal and state judges have the duty to apply the CRPD. However, the discussion about the international responsibility of the Brazilian State to fulfill or not of the commitments of signing and incorporating international treaties is raised within the scope of the competence attributed by the Brazilian Constitution to the Federal Justice. For this reason, we restricted the research object to analyze the second tier of the Federal Justice.

For such work, the main methodology used was the jurimetry, which is the quantitative analysis of judicial decisions. Jurimetry is understood as a research method based on the use of empiricism, combined with statistical analysis, applied to the study of law (YEUNG, 2017, p. 249). Thus, we carried out a review of the summaries (6) of decisions of the collegiate decisions from the five TRFs of Brazil, in order to evaluate references to the UN Committee and the Convention on the Rights of Persons with Disabilities. All the researched data is available on the website of the Federal Justice Council (7). The time interval established for the jurisprudential research was from 25/08/2009 (date of the promulgation of the Convention in Brazil) to the present time (8).

Thus, we performed a quantitative analysis of these Courts' decisions in order to determine how many decisions referred to each of the search terms that were elected to conduct this research, which were: "Committee on the Rights of Persons with Disabilities" and "Convention on the Rights of Persons with Disabilities". After the analysis of the summaries of the decisions, the data was organized taking into account the court, date, and subject of the judgment. Analyzing each court aims to verify whether the number of total decisions from each TRFs varied (9). The date of the decisions, allowed us to note how often the Convention and the Committee were cited in the decisions and from which date they were effectively used in the reasons of the decisions. The subject of each judgment, obtained by reading the summaries, is necessary to verify which matters were dealt with the decisions that referred to the terms used as search parameters (Convention and Committee).

After organizing these data, it was possible to understand the number of decisions that cite the Convention and the Committee, as well as the main legal discussions in which these references appear. The main problem found in this research was that there are no decisions referring the Committee on the Rights of Persons with Disabilities, considering the importance of this body to supervise and define international parameters for the application of the CRPD by Brazil. Although we have not identified any references to the Committee, we found many references to the Convention. In addition, we also identified a significant difference between the numbers of references to the Convention among the studied Courts. Thus, even though a very rich material for quantitative and partially qualitative clarification was encountered, it was necessary to better elucidate how the references to the search terms appeared in decisions, also considering that no similar researches were found in the literature.

According to our results, it is possible to affirm that the changes triggered by the international commitments accepted by Brazil are not just the result of a process of simple incorporation (or "nationalization") of international law. They also result from the commitment to international cooperation that all institutions assume to guarantee and promote human rights. Therefore, this article seeks to study and verify what and how Brazilian courts have debated, built and consolidated regarding global agendas and commitments arising from the CRPD. The present article also presents a study on the main procedures of the Committee and its relation with the Brazilian legal system, besides a brief bibliographic review on the social model of disability. Thus, the present research is based on the main scientific debates involving the protections on the rights of persons with disabilities, such as the development of a social theory of disability, the influence of the social model in the social participation of persons with disabilities and the modification in Brazilian law triggered by the CRPD.

The UN Convention on the Rights of Persons with Disabilities and the social model of disability

It is essential to understand the importance of the UN Convention on the Rights of Persons with Disabilities to comprehend why it is central to the present work. Despite the advances made by the Federal Constitution of 1988, it was the CRPD that materialized the main paradigm shift regarding the concept of disability, which is the substitution of the medical model by the social model of disability. The social model, which conceives disability as the result of the interaction of long-term impediments with the social barriers (article 1 of the Convention, reproduced in its entirety by article 2 of the Brazilian Inclusion Law), puts on the social barriers the responsibility for obstructing the access to citizenship on equal terms with other people. Therefore, the responsibility for the difficulty of exercising the citizenship is no longer exclusive of the persons with disabilities, but is attributed to society as a whole, that is, to individuals who have discriminatory attitudes, such as the public agents who do not perform accessibility works, the private school that charges additional fees to enroll children with disabilities (10), among others.

Previously, disability was defined by the medical model, a concept that understood disability as a result of impairments, in a relation of causality between impairment and disability, so that the responsibility for the lack of social inclusion was fully placed on the person with disability (DINIZ, 2007, p. 44). The main example of this application was the International Classification of Impairments, Disabilities and Handicaps (ICIDH) of the World Health Organization, published in 1980, with the objective of standardizing the biomedical language about injuries and disabilities, which perpetuated a view exclusively medical on disability.

However, since the 1980s, there was a need to develop a social approach to disability (OLIVER, 1986, p. 12), so that the social model of disability started to be developed aiming to understand disability as a result of social barriers. In this sense, Abberley (1987) seeks the...

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