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People with Disabilities as a Vulnerable Group. The Concept of Protection of the Rights of Vulnerable Groups

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People with Disabilities as a Vulnerable Group. The Concept of Protection of the Rights of Vulnerable Groups

1
Monika Domańska, PhD
INP PAN
astamz@sn.pl
ORCID iD: https://orcid.org/0000-0002-2065-367
People with disabilities as a vulnerable group. The concept of protection of
rights of vulnerable groups.
1
Abstract: The social model of disability, which focuses on determining the reasons for
disabilities not connected with the individual as such, but pointing at the social barriers that
limit the individual in the environment where he/she lives, is consistent with the assumptions
of the UN Convention on the Rights of Persons with Disabilities and is a coherent and
complementary element of the concept of individual vulnerability attributed to people who are
marginalised in a given society. Since the EU is a party to the aforementioned Convention,
while the provisions of the ECHR should introduce the minimum standard of protection of
fundamental rights in the EU, it should be determined whether the legislative standard set by
the Convention has been implemented in a binding manner at the level of EU law and ECHR.
Keywords: vulnerable groups, social model of disability, discrimination, marginalisation
In line with the opinion expressed in the Communication from the European
Commission dated 15 November 2010, one in six people in the EU is disabled
2
, the degree of
disability ranging from mild to severe, which means that around 80 million Europeans are
often prevented from taking part fully in society and the economy because of environmental
and attitudinal barriers. The rate of poverty of people with disabilities is 70% higher than the
average, one of the reasons being limited access to employment. Over a third of people aged
over 75 have disabilities that restrict them to some extent, and over 20 % are considerably
restricted. Furthermore, these numbers are set to rise as the EU's population ages
3
. Just these
1
This paper was prepared as part of research grant funded by the National Science Centre and awarded by
decision DEC-2013/09/B/HS5/04526.
2
For reasons of clarity it should be stated that the terms ‘disabled people’ and ‘people with disabilities’ will be
used interchangeably. All persons characterised by physical or psychological disability are for the purposes of
analyses carried out in this article treated as members of a single social group: that of people with disabilities.
3
1. Introduction, Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions. European Disability
Strategy 2010-2020: A Renewed Commitment to a Barrier-Free Europe. COM(2010) 636 final. Brussels,
15.11.2010.
2
facts alone can be considered sufficient to draw the conclusion that disability is of a feature of
many people living in the EU, which at the same time causes their social marginalisation. The
marginalisation of disabled people is also caused by prejudices, which are deeply rooted in
each society and which are based on common stereotypes
4
. Stereotypes, in turn, convey a
negative message, because they comprise unjustified simplifications or generalisations, while
the image they create is incomplete, because they ascribe certain (usually negative) features
regardless of whether all the elements of the image form a coherent whole
5
. A stereotypical
approach has far-reaching negative consequences for those who want to exercise their rights
despite the prejudices in their environments. The issue is important inasmuch as it may lead to
a structural problem if the stereotype is used by state authorities. Beyond any doubt, if state
authorities including the administration of justice
6
follow stereotypes, this may lead to
substantive and factual errors. This arise as practices that work to the disadvantage of certain
people. These practices can be overt or covert actions or omissions to act and create structural
or institutional discrimination
7
.Discrimination is a deeper manifestation of status loss on the
continuum of stereotyping. The key component of this process is the use of dichotomous
categories: male/female, white/black; healthy/disabled. Because of the fact that individuals do
not live in isolation, but in a society filled with a network of various kinds of relationships,
links, and dependencies, no indivvidual is separate from systems of difference which serve to
position people in various, often inequitable ways
8
. It is imaginable that some will be more
regularly at the former and others most frequently at the latter end of the spectrum. By virtue
of their position in a social hierarchy, members of marginalized groups are unlikely to be
viewed as contributors to important collective social goals. On the other hand less privileged
groups feel an obvious pressure to conform to norms which they do not fully accept. This is
the process resulting in the formation of the so-called vulnerable groups, whose rights are as
a rule limited and stratified by the social majority controlling the decision-making processes
in the society.
4
I. Solanke, Discrimination as Stigma. A Theory of Anti-discrimination Law, Hart Publishing 2017, p. 9.
5
S. Buchowska, Stereotypy oparte na płci a dyskryminacja kobiet - aspekty prawno-międzynarodowe [in:] Z.
Niedbała [ed.] Prawo wobec dyskryminacji w życiu społecznym, gospodarczym i politycznym, Warsaw 2011, p.
26; broadly about the formation of stereotypes M. Dębicki, Wokół stereotypów narodowych i niektórych zjawisk
pokrewnych. Nowe formy starych dylematów [in:] R. Dopierała, K. Kaźmierska [eds.] Tożsamość,
nowoczesność, stereotypy, Krakow 2012, pp. 327-338.
6
Równe traktowanie uczestników postępowań. Przewodnik dla sędziów i prokuratorów [eds.] D. Pudzianowska,
J. Jaruga, Warsaw 2016.
7
. I. Solanke, Discrimination as Stigma. A Theory of Anti-discrimination Law, Hart Publishing 2017, p. 33.
8
B. Gough, M. McFadden, Critical Social Psychology - An Itroduction, Basingstoke, Palgrave 2001, p. 13.
3
The concept of individual ‘vulnerability’ as a social feature was defined as ‘universal,
inevitable, enduring aspect of the human condition’
9
. From this point of view, vulnerability
should be perceived as a feature forming part of the human nature (as a part of human
identity), as a result of which feature individuals are constantly exposed to potential (intended
or unintended) harm connected with the risk of the changing circumstances (due to the
constantly evolving character of societies), or with the adopted assumption that such
individuals have to be subordinated to other individuals. From this perspective, also the
vulnerability of a certain group should be seen as a dynamic concept, ascribed to but also
permeating into the notion of minority groups
10
. When we attempt to capture the essence of
the definition of a ‘vulnerable group’ in the language of human rights, we should consider that
such a group is made up of individuals who particularly frequently experience unequal
treatment or need to introduce special instruments for their protection in society.
Nevertheless, it has to be emphasised that even though social vulnerability concerns, first and
foremost, an individual as such, the notion should not be reserved for the outcome of an
assessment of individual’s situation only. It seems possible that a different thesis can be
adopted, namely that individuals with a common feature or established identity can be
classified, within a single group, as vulnerable individuals. By the same token, vulnerability is
an inherent part of a given social situation and consequently can be ascribed to a whole group
of people distinguished by it
11
.
Disability is an issue that is associated mainly with medical problems, rather than legal
ones
12
. For a relatively long time, international law did not attempt to protect disabled people,
in contract to the protection accorded to other vulnerable groups, such as children
13
or
women
14
. There is no doubt that it was only the last decade that saw a development of
disabled people rights protection, including a unified approach to the social definition of
9
M.A. Fineman, The vulnerable subject: Anchoring equality in the human condition, ‘Yale Journal of
Law&Feminism’ 2008, No. 20, p. 8.
10
L. Peroni, A. Timmer, Vulnerable groups: The promise of an emerging concept in European Human Rights
Convention Law, ’International Journal of Constitutional Law’ 2013, No. 4, p. 1060.
11
Ibidem, p. 1068.
12
M. Rioux, Towards a Concept of Equality of Well-Being: Overcoming the Social and Legal Construction of
Inequality, Can. J.L. & Juris. 1994, no 7, p. 127; K. Kurowski, Niepełnosprawność i osoba niepełnosprawna
od medycznego do społecznego modelu niepełnosprawności (w:) Najważniejsze wyzwania po ratyfikacji przez
Polskę Konwencji ONZ o Prawach Osób Niepełnosprawnych. Biuletyn Rzecznika Praw Obywatelskich 2012, no
10, p. 8.
13
UN Convention on the Rights of the Child was adopted by the United Nations General Assembly on 20
November 1989 and ratified by Poland on 30 April 1991 (Polish official journal Dz. U. 1991, No 120, item
526).
14
UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), was adopted
by the United Nations General Assembly on 18 December 1979 and ratified by Poland on 30 July 1980 (Polish
official journal Dz. U. 1982, No 10, item 71).
4
disability at both international and national level. It is the UN Convention on the Rights of
Persons with Disabilities (which the EU has ratified
15
) which is the most important measure
of the fight against segregation and exclusion of disabled people, while at the same time
promoting the social, not the medical, model of disability. This model assumes that it is the
social space where barriers preventing disabled people from participating efficiently exist
16
.
The causes of disability are not linked with the individual as such, but rather with the
environment where the individual lives, which restrains him/her and where social, economic,
and architectonic barriers are identified.
The Convention affects directly the way EU law is applied and interpreted. As a
rule, if the Convention includes a guarantee which is not regulated in EU legislation, it
assumes the function of an instrument filling a legal lacuna. In the process of interpreting EU
law, the Convention becomes an interpretative benchmark
17
. The study of legal instruments at
the level of EU law and the European Convention on Human Rights
18
does not lead to an
unequivocal conclusion that these two legal regimes have adopted and efficiently promote the
social model of disability. Even though the European Convention on Human Rights plays an
important role in strengthening the rights of people with disabilities, Articles 3, 5, 8 or 14
ECHR being among the ones of key importance, the concept of vulnerable groups as ones that
require special protection due to the system of distribution of goods in a given society,
resulting in a privileged position of a selected part of the population and an unfavourable
situation of other members of the population, is a concept which is only beginning to gain
15
The Convention was done in New York and adopted by the United Nations General Assembly on 13
December 2006. It entered into force on 3 May 2008 (the ‘Convention’). On behalf of the EC, the Convention
was signed on 30 March 2007, subject to its possible conclusion at a later date. The European Union ratified the
Convention, whose text was included in Annex I to Council Decision 2010/48/EC of 26 November 2009
concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of
Persons with Disabilities (OJ UE L 23, 27.1.2010, p. 35). The ratification instrument was deposited on 23
December 2010. It should be stressed that this is the first case when the EU became a party to an international
human rights treaty.
16
The social model of disability is the opposite to the medical (individualised) model. The latter assumes a
medical approach to the problem of disability, linking an individual’s diseases with his/her problems with
functioning in the society. This model functions in the US legal system. Cf.: M. Rioux, Towards a concept of
equality of well-being: Overcoming the social and legal construction of inequality, ‘Canadian Journal Law &
Jurisprudence’ 1994, No. 7, p. 127.
17
More broadly, L. Waddington, The European Union and the United Nations Convention on the Rights of
Persons with Disabilities: A story of exclusive and shared competences, ‘Maastricht Journal of European and
Comparative Law’ 2011, vol. 18, No. 4, p. 431 ff.
18
Convention for the Protection of Human Rights and Fundamental Freedoms, done in Rome on 4 November
1950, as amended by Protocols Nos. 3, 5 and 8 and supplemented by Protocol No. 2 (Polish official journal Dz.
U. 1993, No. 61, item 284 as amended), the ‘ECHR’. The body adjudicating on the basis of ECHR provisions is
the European Court of Human Rights, the ‘ECtHR’.
5
importance
19
. Nevertheless, classification of people with disabilities as a particularly
vulnerable group shows a certain evolution in ECtHR case law. Determining the existing
vulnerability of such people enables the Court not only to strengthen the idea of equality as
such, but also to broaden their rights through application of the doctrine of positive
obligations of the state
20
. In this context, the Court attaches great weight to detainees with
mental health conditions. Such people are considered as ‘particularly vulnerable detainees
21
,
or as more vulnerable than the average detainee
22
, or as detainees in particularly vulnerable
situation
23
. Similar attention is given to other persons with mental conditions, the Court
finding that persons of unsound mind’ within the meaning of Article 5(1) ECHR are
vulnerable persons. In the judgment in Alajos Kiss v. Hungary the Court held that individuals
suffering from mental health conditions are a ‘particularly vulnerable group’ due to the
discrimination they suffer from other members of the society
24
. In this judgment the Court
emphasised clearly that if restriction of fundamental rights applies to a particularly vulnerable
social group, which had in the past suffered considerable discrimination, such as mentally
disabled people, then the state’s margin of appreciation is substantially narrower and there
must be very weighty reasons for introducing such restrictions. The reason for such an
approach is that, such groups were historically subject to prejudice with lasting consequences,
resulting in their social exclusion. The prejudices may also result from legislative stereotyping
which prohibits the individualised evaluation of such persons’ capacities and needs
25
.
Yet on the other hand, the concept of vulnerable groups distinguished in ECtHR
case law has also come under criticism
26
. Importantly, the criticism comes from dissenting
judgments of ECtHR judges. As an example, we can mention the opinion expressed by judge
19
A publication which merits approval in the context of problems of vulnerable groups in ECtHR case law is
Y.A. Tamimi, The protection of vulnerable groups and individuals by the European Court of Human Rights,
http://njb.nl/Uploads/2015/9/Thesis-The-protection-of-vulnerable-groups-and-individuals-by-the-European-
Court-of-Human-Rights.pdf (accessed on 11 October 2017). The author analyses 557 cases examined by the
ECtHR, in all of which the word ‘vulnerability’ or related words (the analysis covers case law until 2013,
inclusive of that year). The conclusion is that the concept of vulnerability of individuals and social groups
appears with increasing frequency in ECtHR case law and in 2013 it applied already to 8% of all cases examined
by the Court, compared to 2% in 2007.
20
A. Timmer, A Quiet Revolution: Vulnerability in the European Court of Human Rights’ [in:] M. Fineman, A.
Grear [eds.] Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, Ashgate 2013, p. 147
ff.
21
For instance, ECtHR judgment of 17 June 2012, case Munjaz v. the United Kingdom, application No. 2913/06;
of 24 November 2009, case Halilovic v. Bosnia and Herzegovina, application No. 23968/05.
22
For instance, ECtHR judgment of 10 January 2013, case Claes v. Belgium, application No. 43418/09; of 18
December 2007, case Dybeku v. Albania, application No. 41153/06.
23
For instance, ECtHR judgment of 22 January 2013, case Lashin v. Russia, application No. 33117/02.
24
ECtHR judgment of 20 May 2010, case Alajos Kiss v. Hungary, application No. 38832/06.
25
ECtHR judgment of 20 May 2010, case Alajos Kiss v. Hungary, application No. 38832/06, para. 42.
26
I. Truscan, Considerations of vulnerability: from principles to action in the case law of the European Court of
Human Rights, RETFRD 2013, No. 3, p. 75.
6
B. Borre, who clearly disagreed with the role assumed by the ECtHR in case D.H. and Others
v. the Czech Republic, stressing that evaluating the whole social context in the case was at
variance with the Court’s duty to analyse the case in the individual context
27
. He considered
that an assessment of the historical background and social evolution could not lead to
generalising conclusions for all members of a so-called vulnerable group. A similar criticism
of generalising assessments in respect of members of a vulnerable group was delivered by
judge A. Sajó in his dissenting opinion in case M.S.S. v Belgium and Greece
28
.
The focus on the social model of disability in EU law was impossible for a long time
due to lack of EU competences in the sphere of social policy, which prevented active
influence on the situation of disabled people. Currently, it is the Charter of Fundamental
Rights
29
and Directive 2000/78/EC
30
that provide for the basic obligations of Member States
in the context of prohibition of discrimination of disabled people and equalising their chances
in the society. However, it should be stressed that EU legislation both primary and
secondary (even the instruments of soft law) does not contain a definition of ‘disability’.
Who is a person whose health limitations result in a disability has been decided by the Court
of Justice in its judgments.
In case C-13/05 Chacón Navas,
31
the CJ held that the concept of ‘disability’ should be
understood as ‘a limitation which results in particular from physical, mental or psychological
impairments and which hinders the participation of the person concerned in professional life’.
What was particularly important for the CJ was the distinction between disability and
sickness, which is another hindrance in employment. This was done by adopting the
assumption that a disability by definition has a long-term nature, while the notion of sickness
(in EU law) assumes that it is a short-term indisposition of an employee.
The definition of disability given in the Chacón Navas judgment was criticised by
both legal scholars
32
and advocates-general. It was stressed that making the assumption that in
case of disability there usually is a permanent impairment of the body’s facilities (whether
27
Dissenting opinion of judge B. Borre on ECtHR judgment of 13 November 2007, in case D.H. and Others v.
the Czech Republic, application No. 57325.
28
Dissenting opinion of judge A. Sajó on ECtHR judgment of 21 January 2011, in case M.S.S. v. Belgium and
Greece, application No. 30696/09.
29
Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, p. 391).
30
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in
employment and occupation (OJ EC L 303, 2.12.2000, p. 16).
31
CJEU judgment of 11 July 2006, in case Sonia Chacón Navas v. Eurest Colectividades SA, C-13/05.
32
By embracing the medical model of disability, and focusing on the limitation caused by impairment and the
need to prove such limitation, the Court's decision flies in the face of values underlying the Directive an
Community disability policy’, L. Waddington, Case C-13/05, Chacón Navas v. Eurest Colectividades SA,
Common Market Law Review. 2007, v. 44, No. 2, pp. 487499.
7
physical, mental or psychological) that prevents or considerably limits the participation in
social life, including in particular taking up and remaining in employment, is inconsistent with
the current paradigm whereby disability is considered an element of social diversity and not a
restriction experienced by a certain person. CJ judgment in cases Jette Ring and Skouboe
Wenge
33
is yet another attempt to engage in reflections about the definition of disability. This
judgment is also important because it contains a definition formulated on the basis of a
Framework Directive, but after the EU became a party to the Convention. As soon as in the
introduction to the reflections, the CJ stressed that ‘the primacy of international agreements
concluded by the European Union over instruments of secondary law means that those
instruments must as far as possible be interpreted in a manner that is consistent with those
agreements’. Consequently, the notion of ‘disability’ determined for the purposes of applying
the Framework Directive, was modified so as to reflect Article 1 of the Convention, which
includes among people with disabilities ‘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’. What the CJ also
considered important was that recital (e) of the preamble to the Convention provides that ‘is
an evolving concept and that disability results from the interaction between people with
impairments and attitudinal and environmental barriers that hinders their full and effective
participation in society on an equal basis with others’. In the end, the Court held that the
concept of disability as used in Directive 2000/78/EC must be interpreted as including a
condition caused by an illness medically diagnosed as curable or incurable where that illness
entails a limitation which results in particular from 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,
and the limitation is a long-term one. The CJ confirmed the view that a disability should be
understood as a result of an interaction between individuals with disabilities and the barriers
created by the society was also confirmed in another judgment, in case C-363/12
34
.
The final confirmation of the social character of the European model of disability
made it possible to determine whether EU law assumed the functioning of the concept of a
vulnerable group made up of persons with disabilities. A question asked in this way should be
33
CJEU judgment of 11 April 2013 in joined cases Jette Ring v. Dansk almennyttigt Boligselskab, Lone Skouboe
Werge v. Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S, in liquidation, C-335/11 and C-
337/11.
34
CJEU judgment of 18 March 2014, in case Z v A Government Department and The Board of management of
a community school, C-363/12.
8
answered in the affirmative, while the reflections should move in the direction of consumer
law. In this context, a reference should be made to the contents of Directive 2005/29/EC
35
on
unfair commercial practices, which lists examples of such commercial practices, clarifying
that they are contrary to the requirements of professional diligence and distort the economic
behaviours of an average customer or an average member of a consumer group, if a
commercial practice is addressed to a specific group of consumers (Article 5(2)). Article 5(3)
of the Directive provides that ‘commercial practices which are likely to materially distort the
economic behaviour only of a clearly identifiable group of consumers who are particularly
vulnerable to the practice or the underlying product because of their mental or physical
infirmity, age or credulity in a way which the trader could reasonably be expected to foresee,
shall be assessed from the perspective of the average member of that group. In turn, two other
directives, i.e. Directive 2001/95/EC
36
and Directive 2011/83/EU
37
, make references to the
concept of vulnerable groups in their preambles. Even though these legal instruments do not
expressly mention disabled people as a vulnerable group, the clear differentiation resulting
from their contents between average consumers and particularly vulnerable consumers,
including an emphasis on those with physical or mental disability, allows us to conclude that
this is a group that requires adopting a higher standard of protection. In line with the
guidelines from the European Commission
38
consumers’ susceptibility to risks has a multi-
dimensional character and such is also the infuence of the personal characteristics on the
likelihood of being a consumer susceptible to risks. For this reason, the EC recommends
referring disability (psychological or physical) to both sensory impairments and limited
mobility and other forms of infirmity.
The EU instruments mentioned above treat ‘vulnerable consumers’ as a static group,
which is inconsistent not only with the assumption that all consumers may prove to be
vulnerable and in need of special protection when they are parties to transactions with
experts
39
. Thus, lack of identification of such special situations (vulnerable situations) makes
35
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair
business-to-consumer commercial practices in the internal market, OJ UE L 149, 11.6.2005, p. 22), e.g. Article
5; recital 19 of the preamble.
36
Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general
product safety (OJ UE L 11, 15.1.2002, p. 4).
37
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights
(OJ UE L 304, 22.11.2011, p. 64), e.g. recital 34 of the preamble.
38
European Commission, Staff Working Document, Guidance on the Implementation of Directive 2005/29/EC
on unfair commercial practices, SEC (2009) 1666, p. 53-54.
39
I. Barral-Vinals, Freedom of contract, unequal bargaining power and consumer law on unconscionability [in:]
M. Kenny, J. Devenney, L. O’Mahony [eds.] Unconscionability in European Private Financial Transactions,
Cambridge 2010, pp. 46-61.
9
it impossible to develop also in the context of disabled people the right standard of
protection. Moreover, the static and medical concept of disability adopted in the directives,
which is applied to disabled vulnerable consumers, cannot be changed by applying the
relevant provisions of the Convention on the Rights of Persons with Disabilities, as
individuals cannot invoke the direct effects of its provisions
40
. Therefore, one should conclude
that disabled consumers may experience a lack of adequate protection of their legal status due
to the gap that exists between the state of their identity, which differs from that of the rest of
the society, and the external legal environment, which gap cannot as the law stands now
be bridged by the concept of individual vulnerability, developed by (typical of) EU law. The
formation of a desired standard might help in the coexistence of the purpose of protection of
particularly vulnerable consumer groups and the purposes guaranteeing an efficient
functioning of the internal market in the EU.
Concluding the above reflections, one should state that neither EU law nor ECtHR
case law meets the requirements necessary to accord protection to disabled persons as a
vulnerable group. Even though the issues relating to the situation of disabled people are an
important area of human rights law and ECtHR case law does distinguish the needs of this
group of people, stressing the importance of ‘inherent difficulties’ in everyday life, rather than
indicating positive solutions having the nature of positive obligations of the state, may only
intensify the group’s maginalisation. At the level of EU law, the concept of a vulnerable
group whose members are disabled people remains linked with the role played by these
people on the internal market. Nevertheless, lack of binding definitions of both ‘vulnerable
group’ and ‘disabled people’ does not help in determining at the level of case law to what
extent the enhanced standard of protection for these people should be introduced.
BIBLIOGRAPHY
Barral-Vinals I., Freedom of contract, unequal bargaining power and consumer law on
unconscionability [in:] M. Kenny, J. Devenney, L. O’Mahony [eds.] Unconscionability
in European Private Financial Transactions, Cambridge 2010.
Buchowska S., Stereotypy oparte na płci a dyskryminacja kobiet - aspekty prawno-
międzynarodowe [in:] Z. Niedbała [ed.] Prawo wobec dyskryminacji w życiu
społecznym, gospodarczym i politycznym, Warsaw 2011.
40
CJEU judgment of 18 March 2014, in case Z v. A Government Department and The Board of management of
a community school, C-363/12, para. 90.
10
Dębicki M., Wokół stereotypów narodowych i niektórych zjawisk pokrewnych. Nowe formy
starych dylematów [in:] R. Dopierała, K. Kaźmierska, [eds.] Tożsamość, nowoczesność,
stereotypy, Krakow 2012.
Fineman M.A., The vulnerable subject: Anchoring equality in the human condition, Yale
Journal of Law&Feminism 2008, No. 20.
Peroni L., Timmer A., Vulnerable groups: The promise of an emerging concept in European
Human Rights Convention law, International Journal of Constitutional Law’, 2013, No.
4.
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groups-and-individuals-by-the-European-Court-of-Human-Rights.pdf.
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for Law and Politics, Ashgate 2013.
Truscan I., Considerations of vulnerability: from principles to action in the case law of the
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Article
This paper starts with a dilemma. How to ensure the adequate protection of individual health data and privacy in a global pandemic, which has intensified the use of digital applications for the purposes of data sharing and contact-tracing? There is no simple answer to this question when choosing between the protection of public health and individual privacy. However, the history of the existing case-law regarding infectious diseases control, both Polish and European, teaches about numerous examples in which health data and privacy were not adequately protected, but, on the contrary, were misused leading to human rights infringements. In light of this case law and public health ethics, this paper argues radically that the use of digital applications to fight the Covid-19 pandemic has not been sufficiently justified at least in the Polish context. Especially, unconvincing benefits from the use of these tools do not outweigh the likelihood of human rights infringements with far-reaching consequences for political, social and economic rights now and in the future. In its novelty, this article combines a historical-legal method with the concept of public health ethics and a human rights-based approach and to foster further research and discussion. The text also responds to the pressing need to analyze those human rights issues embedded in the Polish reality.
Article
This article answers the question of whether trademark regulations and case law promote the aims of international and EU law regarding the inclusion of persons with disabilities in social and economic life, which includes the involvement of persons with disabilities as consumers of goods and services, or whether they generate a conflict between the principles of trademark protection and the accessibility of trademarks for persons with disabilities. Trademark law and its interpretation is developing in parallel with the development of the concept of access and the inclusion of people with disabilities in every sphere of life. Both the content of the legislation and, in particular, trademark decisions fail to take into account the disability perspective, thus the law perpetuates an approach that denies people with disabilities the possibility to be consumers and to distinguish the origin of products to the same extent as non-disabled people. It is possible to introduce changes through minor steps in order not to revolutionise but only to complement the trademark system with a disability perspective, and thus meet the requirements of including people with disabilities in social and economic life.
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This essay develops the concept of vulnerability in order to argue for a more responsive state and a more egalitarian society. Vulnerability is and should be understood to be universal and constant, inherent in the human condition. The vulnerability approach is an alternative to traditional equal protection analysis; it represents a post-identity inquiry in that it is not focused only on discrimination against defined groups, but concerned with privilege and favor conferred on limited segments of the population by the state and broader society through their institutions. As such, vulnerability analysis concentrates on the institutions and structures our society has and will establish to manage our common vulnerabilities. This approach has the potential to move us beyond the stifling confines of current discrimination-based models toward a more substantive vision of equality.
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The signature and conclusion of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) by the European Community (now European Union) marks a significant step forward in the protection of human rights by the EU. Whilst the EU has become a party to international treaties in the past, this is the first such accession to a human rights treaty. As a consequence, the conclusion of the CRPD by the EU raises many interesting questions, and the path to be followed by the EU in identifying which Convention obligations it is bound by, or should act on, and which obligations fall primarily within the responsibility of the Member States, is, as yet, untrod. This article is a first attempt to examine some of those issues and, specifically, to reflect on what factors will determine whether EU action to implement the Convention would be appropriate in those many areas that fall within the shared competence of the EU and the Member States.
Chapter
Introduction, This chapter examines the compatibility of the common law concept of unconscionability with various categories in civil law, with particular reference to Spanish legislation, which has no general principle that corresponds directly to that of unconscionability, at least to the extent that this term exists in common law systems. Yet, Spanish law, in Article 1255 of the nineteenth-century Spanish Civil Code (hereafter CC), also provides a number of disparate tools that limit the basic principles of freedom of contract and free will, thereby offering similar remedies to those available in common law. The chapter focuses on the interpretation of the general good faith clauses contained in Articles 1258 CC and 116–7 of the Catalan Civil Code (hereafter CCCat) as a general remedy in a nineteenth-century liberal Civil Code, as well as additional prohibitions such as pactum commissorium. It then analyses an unusual text in the Spanish system that seeks to counter the imbalance between parties: the 1908 Act for the Repression of Usury. Finally, I conclude by turning my attention to the present-day situation which defends the rights of the weaker parties in consumer law and, in particular, to unfair contract terms (UCT). Freedom of contract and the interpretation of the good faith clause in the Spanish Civil Code of 1889, The nineteenth-century Spanish Civil Code was founded on the basis of liberal doctrine and, as such, freedom of contract was placed at the heart of its contractual regulations.
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The ways in which a society provides for people who, for one reason or another, are more socially and economically dependent throws into sharp focus the problems of equality as a political construct. The basic dilemma of social dependency is that of reconciling the responsibility of the state to ensure equality with the rights and needs of those who are dependent. The social, legal and economic policies in place at any given time in history reflect the ways that principles of justice have legitimated differential treatment. To study the case of intellectual disability, therefore, is to reflect upon the legal microcosm of the struggle for social justice and the parameters of political obligation to ameliorate inequality.
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The concept of vulnerable groups is gaining momentum in the case law of the European Court of Human Rights. The Court has so far used it in cases concerning Roma, people with mental disabilities, people living with HIV, and asylum seekers. Yet the appearance of the vulnerable-group concept in the Court’s legal reasoning has so far escaped scholarly attention. Drawing on theoretical debates on vulnerability as well as on the Court’s case law, this article offers a critical assessment of the concept. Reasoning in terms of vulnerable groups opens a number of possibilities, most notably, the opportunity to move closer to a more robust idea of equality. However, the concept also has some inherent difficulties. This article argues for a reflective use of the concept and points out ways in which the Court can avoid its pitfalls.
Stereotypy oparte na płci a dyskryminacja kobiet - aspekty prawno-międzynarodowe
  • S Buchowska
Buchowska S., Stereotypy oparte na płci a dyskryminacja kobiet -aspekty prawno-międzynarodowe [in:] Z. Niedbała [ed.] Prawo wobec dyskryminacji w życiu społecznym, gospodarczym i politycznym, Warsaw 2011.
Wokół stereotypów narodowych i niektórych zjawisk pokrewnych. Nowe formy starych dylematów
  • M Dębicki
Dębicki M., Wokół stereotypów narodowych i niektórych zjawisk pokrewnych. Nowe formy starych dylematów [in:] R. Dopierała, K. Kaźmierska, [eds.] Tożsamość, nowoczesność, stereotypy, Krakow 2012.