Is the law sufficiently accessible to the disabled? Disability, which is often poorly understood or even unknown, creates inequalities in access to the law, although the latter must be accessible to all.
A review of the evolution of the law in the field of disability seems opportune before highlighting that disability is an obstacle to access to the law.
As of January 1, 2015, the Ministry of Social Affairs and Health estimated 12 million French people affected by a disability out of 65 million. Among them, 80% suffer from an invisible disability, 1.5 million are visually impaired and 850,000 have reduced mobility. At the same time, internationally, according to the United Nations, approximately 650 million people, or 10% of the world population and approximately 80% in developing countries, suffer from a physical, mental or sensory disability. .
Despite these figures, people with disabilities are often marginalized, or even excluded, through discrimination against them in various forms. Nevertheless, the evolution of society has created a legislative recognition of disability even if it has been slow and that disability still remains an obstacle in access to the law.
I. Disability, slow legislation.
In Antiquity, disability was totally rejected by the exclusion from society of disabled people by considering them as unclean, victims of a divine curse. A slight recognition began in the Middle Ages with the creation of “Hôtels-Dieu” and hospices to accommodate the infirm, poor and destitute of society, but the goal is to lock them up to satisfy the society which is afraid of their difference.
A turning point appears in the 18th century, the Age of Enlightenment (1715-1789), which advocates reason, science and respect for humanity. Indeed, the philosopher Diderot (1713-1784), in his essays, will seek to demonstrate the equality of minds provided that one devotes sufficient instruction and education to them. In addition, three great men also made the company evolve:
the Abbot of the Sword (1712-1789) founded a school for the deaf-mutes and invented the methodical signs;
Valentin Haüy (1745-1822) founded the institution for young blind people and invented characters in relief in order to facilitate their access to reading;
Philippe Pinel (1745-1826) invented psychiatry and gentle treatments to remedy the violence of which unbalanced people were victims.
From the 19th century, legislation began to appear both in the recognition and in the management of disability.
Society is changing, especially in the world of work and education. On the one hand, the law of April 8, 1898, which is the first law to insure French employees in the event of a work accident, creates a special compensation scheme for victims of work accidents. On the other hand, the “Jules Ferry” laws are a step forward by a series of laws on primary school with that of June 16, 1881, which makes primary education public and free and that of March 28, 1882, which makes compulsory primary education (6-13 years) and secular public education.
Other laws followed, such as that of July 14, 1905 on assistance to the elderly, infirm and incurable, before leading to a real legislative device by law n ° 75-534 of June 30, 1975 of orientation in favor people with disabilities. The aim is to promote the social life of disabled people with provisions relating to disabled children and adolescents, the employment of disabled people and benefits for disabled adults.
Progress continues with Law No. 87-517 of July 10, 1987 in favor of the employment of disabled workers, which establishes an obligation to employ disabled workers, war disabled and assimilated to establishments with 20 or more employees. in the proportion of 6% of their workforce. Failure to comply with this obligation results in the payment of a financial contribution to the Association for the Management of the Fund for the Integration of Disabled Workers (AGEFIPH).
This law applicable until 2005 was a success. Indeed, according to DARES, at that date, more than 100,000 establishments were subject to the obligation to employ disabled workers against 90,000 ten years earlier. The number of workers identified as benefiting from the law was 220,000 in the mid-1990s, and then increased from the year 2000 to reach 252,000 in 2005.
Therefore, the law of February 11, 2005, for equal rights and opportunities, participation and citizenship of people with disabilities, modifies this law, the aim of which is to further improve the management of disability with recognition national handicap.
Indeed, in its article 2, it recalls the fundamental rights of the handicapped people and gives a definition of handicap:
“Constitutes a handicap, within the meaning of the present law, any limitation of activity or restriction of participation in life in society undergone. in its environment by a person due to a substantial, lasting or definitive impairment of one or more physical, sensory, mental, cognitive or psychic functions, of a multiple handicap or of a disabling health disorder. “
Various measures are planned concerning the reception of disabled people, the right to compensation, resources, education, employment, accessibility, citizenship and participation in social life, but also the recognition of the French sign language. as a language in its own right, etc.
In addition, the employment obligation resulting from the law of July 10, 1987 is still 6% and imposes a more severe sanction for companies which do not respect this obligation by increasing the amount of the contribution to AGEFIPH.
In parallel to this legislation, associations representing disabled people were created following the law of July 1, 1901 on associations:
the Federation of
Labor Disabled ( 1921), the National Federation of Labor Accidents and the Handicapped (1985),
the Federation for the Integration of Deaf People and Blind People of France (1989),
the Association of the Paralyzed in France (1933),
the Mutual Aid Association of Polios and the Handicapped (1957),
the French Association against Myopathies (1958),
National Union of Parents of Inadapted Children (1960).
On an international scale.
From the 1970s, the fundamental rights of people with disabilities took shape through the role and action of the United Nations. For example, the United Nations General Assembly adopted in 1971 the Declaration of the Rights of the Mentally Impaired, then, in 1975, the Declaration on the Rights of Persons with Disabilities defining standards for the equal treatment of these persons and their access. to services for their social integration.
Furthermore, in 1989, article 23 of the Convention on the Rights of the Child recognized the vulnerability of children with disabilities and advocated non-discrimination. During this year, the European Social Charter of the Council of Europe commits member states to take the necessary measures to guarantee people with disabilities the exercise of the right to independence, social integration and participation. to the life of the community.
Finally, it seems useful to welcome the adoption in 2006 of the Convention on the Rights of Persons with Disabilities. In 2011, 147 countries were signatories and 99 ratifications were obtained.
Disability legislation has gradually evolved both in French law and in international law. Even if the law recognizes disability and improves its care, the question remains as to its effective accessibility in practice.
II. Disability, an obstacle in access to the law.
The law of February 11, 2005 for equal rights and opportunities, participation and citizenship of people with disabilities brings into play equal access to all public service and establishments open to the public. However, accessibility is still far from equal for all.
Disability in figures.
In its 2011 edition of the French economy, INSEE estimates 9.6 million people with disabilities, of which 1.6 million people aged 15 to 64 have administrative recognition of disability which allows them to benefit from Law on the obligation to employ disabled workers.
In the report of the 2017 edition, it estimates, in 2014, 400,000 disabled workers employed in the 101,000 establishments subject to the obligation of disabled workers.
By focusing more closely on the various disabilities, on January 1, 2015, the INSEE estimated that 13.4% suffered from a motor impairment, 11.4% from a sensory impairment, 9.8% from a disability. organic, 6.6% have intellectual or mental disabilities and between 2% to 3% of the population uses a wheelchair.
Disability, source of inequalities.
The law of January 11, 2005 mainly focuses on material arrangements to facilitate access to any establishment open to the public, without considering compensation for sensory, psychic, cognitive or even mental disabilities. As a result, there is a real inequality before the courts: many litigants have difficulty asserting their rights because of disability.
For example, do people with deafness or schizophrenia have real access to justice? Indeed, the handicap creates many barriers: the language which makes essential the presence of a third party, an interpreter, and the difficulty for the justice to judge the handicap and / or the mental illness, the responsibility for the acts committed and to see whether or not incarceration is possible.
Also, deafness in prison creates an imbalance in the relations between legal professionals as pointed out by Anne Bamberg, Senior Lecturer (Deaf in prison: Communication difficulties and increased isolation; public note of May 9, 1998):“Deafness constitutes an invisible handicap which creates particular indigence in a prison environment. Certain difficulties are linked both to hearing impairments and to the cultural universe specific to the deaf. Specific problems appear from the first contacts with the administration of justice. and can extend well beyond incarceration, involving possible integration or reintegration. “
Disability defended for better access to law.
If disability is still an obstacle to access to the law, it is because of the lack of training for legal professionals in disability situations, in the face of invisible disabilities and legislation geared towards material accessibility.
For example, the directory of French lawyers on the website of the National Bar Council has only 6 lawyers out of all the bars in France who can speak French sign language, including 4 at the Paris bar.
As a result, a Droit Pluriel association works for equal access to law for all without exception.
In 2016, following a survey carried out by this association between September and December 2015 on professional relations between justice and people with disabilities, a report was published under the aegis of the Defender of Rights entitled “Legal professionals and handicap ”. As this study indicates: “This work has made it possible to include accessibility to justice as a priority. This modernization will have to go through material adjustments and a new look at litigants with disabilities. “
The survey focuses on whether disability is an obstacle in access to law and justice, but also questions about the training necessary to improve access to justice for people with disabilities.
It emerges from it:
“any behavior deviating from the norm suggests, by a sort of little thoughtful reflex, that the person concerned is struck by a mental or psychic disorder […] for example the case of a person who answers side by side, does not look at his interlocutor or makes him repeat, struggles to express himself or to direct himself … These situations can however result from hearing impaired, visually impaired, a motor or cognitive handicap. “;
“Associations and people with disabilities have the feeling that their disability is poorly understood by professionals and that any ‘different’ behavior is interpreted as an expression of a deficiency in their intellectual capacities”;
“The approach to disability is therefore parasitized by prejudices which hamper its knowledge and therefore its understanding. “;
“The compensation methods (tools and techniques) are little known to legal professionals, as to the general public. They are also not always mastered by people with disabilities themselves. On the one hand, each person finds his or her method of compensation (few blind people use braille, for example) or seeks it: since disability can occur at any time in life, its compensation is a permanent challenge to be taken up for the person concerned. These constantly evolving tools and practices must be mastered by both parties to be efficient. “