The overall procedure is as follows:
• Individuals can complain to the Com-mittee if they consider that their rights under the Convention have been vio-lated by a State party. The complaint is sent to the petitions team of OHCHR, CH-1211 Geneva 10, petitions@ohchr.org or by fax (for urgent matters) +41 22 917 90 22.
• The communication is registered. In order to be registered, the communica-tion must meet the basic requirements for admissibility, such as the identifica-tion of the State party to the Opidentifica-tional Protocol. Otherwise, the communication is not registered and the petitions team may request additional information from the author.
• Any communication that is registered is then brought to the attention of the State party concerned.
• The State party may submit written infor-mation within six months, clarifying its position on the issues raised and outlin-ing remedies that may have been taken in the specific case.
• The Committee should transmit the infor-mation provided by each of the parties to the other party and shall afford each of them the opportunity to comment on their respective submissions within fixed time limits.
• If necessary, the Committee may order interim measures to prevent any irrep-arable damage to the individual or group. However, this does not imply that
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the Committee believes the communica-tion is either admissible or founded. The Committee could order interim measures but then decide that the communica-tion is inadmissible and take no further action.
• The Committee will consider whether the communication is admissible.
• If the communication is admissible, the Committee will consider the merits of the communication. In other words, it will assess whether there has been a viola-tion of the Convenviola-tion. If the communi-cation is inadmissible, the parties are informed and the procedure ends.
• Admissibility and the merits can be examined together or separately.
• After examining the communication, the Committee will forward its views and recommendations, if any, to the State party and the petitioner.
• The views on admissibility and the merits are made public.
• If the Committee makes a finding of a violation, it will follow up on action taken by the State, for example, through future periodic reports.
The Committee has so far given its views on the merits of three communications: H.M.
v. Sweden (communication No. 3/2011), Szilvia Nyusti and Péter Takács v. Hungary (communication No. 1/2010) and Zsolt Buj-dosó and five others v. Hungary (communica-tion No. 4/2011). 17
17 For the Committee’s jurisprudence, see www.ohchr.org/
EN/HRBodies/CRPD/Pages/Jurisprudence.aspx (accessed 24 September 2013).
H.M. v. Sweden
(communication No. 3/2011)
1. Facts
The author, whose impairment has resulted in her being completely bedridden, was not able to leave her house or be trans-ported to hospital or rehabilitation care because of the increased risk of injury. The only type of rehabilitation that could stop the progress of her impairment was hydrotherapy, which in the author’s circumstances would only be practicable in an indoor pool in her house. Consequently, the author applied for planning permission for an extension to her house on her privately owned piece of land, partly on land where building is not permit-ted. The request for building permission was rejected at all levels of the national adminis-trative justice system, because it went against building regulations, and construction could not be permitted even as a minor divergence from the detailed plan and the State party’s Planning and Building Act.
2. Claim
The author claimed to be a victim of a violation by Sweden of her rights under articles 1 (purpose), 2 (definitions), 3 (gen-eral principles), 4 (gen(gen-eral obligations), 5 (equality and non-discrimination), 9 (acces-sibility), 10 (right to life), 14 (liberty and security of person), 19 (living independently and being included in the community), 20 (personal mobility), 25 (health), 26 (habili-tation and rehabili(habili-tation) and 28 (adequate standard of living and social protection) of the Convention on the Rights for Persons with Disabilities. The author claimed that she had been discriminated against by the decisions of the State party’s administrative bodies and courts, since they had failed to
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take into account her rights to equal oppor-tunity for rehabilitation and improved health.
She thereby claimed to have been refused her right to a worthwhile quality of life. The author requested the Committee to determine whether her needs for rehabilitation and care due to her disability were of primary consideration over the public interest as pro-tected by the Local Housing Committee and as determined in the Planning and Building Act.
3. The State party’s submissions on admissibility and on the merits
According to the State party, the author’s claims failed to rise to the basic level of sub-stantiation required for purposes of admis-sibility and should be declared inadmissi-ble pursuant to article 2 (e) of the Optional Protocol. It further stated that the author had merely referred to a number of articles of the Convention without advancing grounds for how her rights under these articles had been violated, and that it was only in a position to explain in general terms how Swedish legis-lation relates to and fulfils the requirements contained in the articles that may be relevant in this case. The State party viewed that the communication should be declared inad-missible for lack of substantiation, since the author’s claims under various articles of the Convention failed to rise to the basic level of substantiation.
4. Decision
The Committee noted that the author had invoked a violation of articles 9, 10, 14 and 20 of the Convention, without however providing further substantiation as to how these provisions may have been violated.
Therefore, the Committee considered that
these claims were insufficiently substanti-ated, for purposes of admissibility, and were thus inadmissible under article 2 (e) of the Optional Protocol. The Committee consid-ered that the author’s remaining allegations under articles 3, 4, 5, 19, 25, 26 and 28 of the Convention had been sufficiently sub-stantiated, for purposes of admissibility, and proceeded to their examination on the mer-its. The Committee noted that the informa-tion before it showed that the author’s health condition was critical and access to a hydro-therapy pool at home was essential and an effective—in this case the only effective—
means to meet her health needs. Appro-priate modification and adjustments would thus require a departure from the develop-ment plan, in order to allow the building of a hydrotherapy pool. With reference to the Convention’s definitions of “discrimination on the basis of disability” and “reasonable accommodation” (art. 2), the Committee noted that the State party had not indicated that this departure would impose a “dispro-portionate or undue burden”, which was a prerequisite for defining that a request for accommodation was unreasonable. In rela-tion to articles 25 (health) and 26 (habilita-tion and rehabilita(habilita-tion), the Committee noted that, when rejecting the author’s application for a building permit, the State party had not addressed the specific circumstances of her case and her particular disability-related needs. The Committee therefore considered that the decisions of the domestic authorities to refuse a departure from the development plan in order to allow the building of the hydrotherapy pool were disproportionate and produced a discriminatory effect that adversely affected the author’s access, as a person with a disability, to the health care and rehabilitation required for her specific health condition.
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5. Finding
The Committee found that the State party had failed to fulfil its obligations under arti-cles 5 (1), 5 (3), 19 (b), 25 and 26, read alone and in conjunction with articles 3 (b), (d) and (e), and 4 (1) (d), of the Convention.
Having reached this conclusion, the Commit-tee did not consider it necessary to address the author’s claims under article 28 of the Convention.