People with the same kind of disabilities can experience completely different lives depending on the place of living. In some countries policies allow people with all kinds of disabilities to get education and job, to meet friends, to marry: in other words to live as an integral part of society. Meanwhile in other countries persons with the same kind of disabilities, especially those who need help by others for such basic tasks as dressing or eating, have much more limited choices and usually are referred to live together with their parents or in an institution. There are two dominant forms of supporting people: through institutional- or community based channel. Personal care for individuals with disabilities is primarily ensured by large residential institutions in Hungary. Existence of such institutions is not unique and not confined to this country. A recent study, founded by the European Commission,[1] found that at least 1.2 million children and adults with disabilities live in long-stay residential institutions in the European Union and Turkey which is contrary to the UN Convention on the Rights of Persons with Disabilities (the Convention)[2]. Admissibility of large residential institutions to exist can be considered a human rights issue related to human dignity. Housing has a basic function in the life of people, and adequate social care- and housing services constitute an important prerequisite for the preservation of human dignity. International experience confirms that large residential institutions are not able to fill the original goals attached to them and they cannot safeguard human rights properly. In a number of countries, non-institutional services are solely acceptable forms of support provided for people with disabilities. Meanwhile residential institutions are in transition today in the Eastern European countries including Hungary. One of the target areas of the Act on Ensuring Rights and Equal Opportunities for Persons with Disabilities (the Disability Act)[3] is the field of community inclusion and independent living. The Hungarian Parliament adopted its National Disability Program in 2006 which aims to provide help for people with disabilities to be able to live independently and to participate actively in the life of society. By ratification of the UN Convention, Hungary committed itself to realize institutional transformation, and to organize community-based services. The Hungarian Government adopted a strategic program[4] (the Strategy) for the period of 2011-2041 on the replacement of social institutions caring for people with disabilities. Development of an appropriate legal background begun in order to be able to realize deinstitutionalization process and the creation of community based alternatives to institutional care. The present study combines citizen perspective and environmental approach, and views persons with disabilities as citizens who get into a problematic situation during entering to a non-accessible physical- or social environment.
The term community living is used to describe that form of living in which people with disabilities are able to live in their communities as equal citizens, and are provided with the support they need during participating in the everyday life of society. Community living has been successfully implemented in countries with different traditions, cultural- and administrative background because of the basic principles that are the same everywhere. In the sense of having the opportunity to live an ordinary life, independent living and supported living are also commonly used terms in relation to persons with disabilities. The concept of independent living does not mean living independently. In fact, it suggests that people with disabilities have the same right to make decisions concerning the key issues of their life but it does not mean that individuals are expected to live without support. Practical assistance should be based on the choices of people.[5] Supported living enables persons with disabilities to live in their own homes as an alternative to residential institutions. It separates housing-and support services, and responds to the needs of people in a more flexible way. The right to be included in the life of the community has been articulated in a binding international legal document for the first time by Article 19 of the UN Convention of which Hungary is a State Party. Accordingly, the country shall take effective measures to facilitate full inclusion and participation of people with disabilities in the life of the community. Hungary has to ensure that persons with disabilities "have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance
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necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs". The Convention obligates the State Parties to develop community living to be able to replace institutional care, and to adopt new legislation and administrative measures if it is needed in order to promote the human rights of persons with disabilities. The rights of people with disabilities have to be protected and promoted in all policies and programs. In the light of these measures, Hungary committed itself to realize the replacement of residential institutions and to provide community based services for everybody. The Convention recognized that the states might not have enough resources for the implementation of all provisions at the same time, but the lack of resources can not be a cause for not taking any action. The UN Convention is the most striking manifestation of the inclusive social model. The difference between social inclusion and social integration shall be pointed out, as the former one has a more complex and broader concept. Living inclusive means that one lives together with his or her family, on his or her own, or together with a small group of people in an ordinary house located in the community. Inclusive social model considers people with disabilities an integral part of society.
Support services can be organized in different ways. From the 1920s institutions were built with good intentions to take care of persons with disabilities. The idea was to gather people with special needs at the same place to meet those needs in a more effective way. Support was delivered through institutional settings usually in the countryside. Institutions increasingly isolated their residents from the rest of society Europe-wide until their existence became questioned during the 1950s and 1960s.[6] Segregation was no longer seen as protection but as exclusion. Basic definition of the term institution refers to a building that is separated from its surroundings and isolates many people with special needs from the mainstream of society in order to enhance the ability to provide for them.[7] The objective within institutions is to take complete care of people who live there. Everything that individuals may need shall be available at the same place, and other organizations or the family are not expected to take responsibility. Closely regulated visiting hours make it difficult to maintain a normal relationship between the family and the person who was admitted to the institution. According to the Common European Guidelines on the Transition from Institutional to Community-based Care (the Guidelines) conducted by the European Expert Group (2012) institutions are residential facilities isolating their residents form the broader community and/or compelled to live together. Residents do not have control over their lives and daily decisions affecting them and the requirement of the organization tend to take precedence over individual needs of the residents.[8] The Guidelines took the concept of institution from another relevant instrument, namely the Report of the Ad Hoc Expert Group on the Transition from Institutional to Community-based Care (2009)[9] which contained that the number of residential places constitutes a conceptual element in determining institutions. If the number of people living together in a residential facility reaches thirty, that form of housing has to be considered an institution. Institutions are not only defined by their size but the higher the number is the more likely that institutional tradition will recreate itself and individual based care cannot be provided. Due to the human rights approach, the term of institution in this study is based on the above mentioned key elements as they take into account the significance of human dignity, quality of life and social inclusion of people. Institutional model is seen today as an inadequate form of providing support and replaced by community based services in many countries. Numerous reports are available on violation of human rights in large residential institutions with very similar results which is unacceptable both humanly and legally.[10] In contrary to institutions, services for people with disabilities can be organized through community based channel as well. The term community based is used to describe that form of living in which people are able to live in their communities as equal citizens and are provided with the support they need to be able to participate in everyday life of their community. There is scientific evidence that community based services offer better outcomes in terms of quality of life in general. Large residential institutions can not deliver the same access to human rights as quality community based services can do. However, better outcomes are dependent on many factors. While institutional tradition offers special services for people with disabilities, community based tradition provides services used by the general public. Institutional settings offer an institutional life with lower standards, in contrast, community based alternatives are to provide an ordinary life in the community with choices. Institutional model cannot provide services for all and high institutional standards are very expensive. People living in institutions are usually seen as pupils or patients whose competence has to be increased in order to be able to leave the institution and to live in the community. Meanwhile, in
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community based settings people are seen as citizens with the right to live in the community regardless of their disabilities or abilities. The right to live like you and I do has become a political issue in many countries. Community living offers different quality of life and conditions for personal development which should be available today for everybody. One of the key action lines of the Recommendation of the Committee of Ministers (Council of Europe, 2006) is the field of community living. The action line focuses on enabling people with disabilities to live as independently as possible, empowering them to make choices concerning how and where they live. Achieving these goals requires strategic policies supporting the move from institutional care to community-based settings ranging from independent living arrangements to small group homes - according to the recommendation. In exceptional cases, when complete independent living might not be a possibility for an individual, the recommendation allows care in small quality structures as an alternative to living in an institution.[11]
Replacement of institutional tradition with small scale community based alternatives and more recently by individual residential support services, in other words deinstitutionalization, has been probably the most important development in services provided for people with disabilities in Western Europe and North America over the last 40-50 years[12]. As Ericsson (2000) has characterized, deinstitutionalization is a concept used in international literatures to describe the progression away from social services provided through residential institutions.[13] The criteria in the present study to demonstrate this complex process, is based on the above mentioned study, "Deinstitutionalisation and community living - outcomes and costs". The authors of the report summarized the steps they considered important during the transition process. On the basis of these recommendations, deinstitutionalization means the complete replacement of institutions by services in the community. However, transition of support services does not finish with the closure, and living in the community does not necessarily mean community living. The key to institutional closure and success lies in the creation of appropriate and quality services including social-, health care-and other services. One has to avoid repeating institutional care practices as services can become institutional if they are not based on individual needs of people using them. Only quality community based services are able to ensure individualized support for people with disabilities to be able to live an ordinary life. Besides, the process requires conscious political commitment and an extensive cooperation between the people concerned, professionals, politicians and the public.
International organizations and the European Union are able shape national systems by adopting legally binding treaties and formulating requirements as well as recommendations. The role of the international human rights conventions increasingly strengthened in the field of disability issues since they are approached from human rights perspective. A number of human rights treaties were drawn up since the 1970s to underline the rights of people, including individuals with disabilities. The UN Convention on the Rights of Persons with Disabilities has a central role in the international legal framework. It was accepted in 2006 as a reaffirmation that the rights of persons with disabilities are human rights. It follows decades of work of the United Nations to change attitudes towards people with disabilities and it contains that all members of society have the same human rights including civil, cultural-, economic-, political- and social rights such as the right to live in the community. The strength of the Convention lies in its implementation as it sets out steps that governments of the signatory states have to take in accordance with this human rights instrument. The right to be included in the life of the community has been articulated in a binding international treaty for the first time by Article 19 of the Convention.
There is an increasing political commitment in the European Union to support deinstitutionalization and the development of quality community based services. In 2007, the Union has signed the UN Convention and accordingly, it became a Party to an international human rights treaty for the first time in history in 2010. The Convention requires States Parties to protect and safeguard all human rights and fundamental freedoms of persons with disabilities. Ratifying countries have to ensure that people with disabilities can enjoy their rights on an equal basis with other citizens. For the European Union, this means that all legislation, policies and programs at EU level have to comply with the provisions of the Convention. The European Union Member States are responsible to shape and develop their disability policies with regard to the EU regulations concerning people with disabilities. The Union supplements national activities for implementing accessibility in society, and supports social inclusion goals and encourages the creation of person-centered services for persons with disabilities. EU institutions and the Member States are called upon to work together under the European Disability
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Strategy 2010-2020 (European Commission, 2010) which aims to empower people with disabilities to be able to participate in the life of society on an equal basis with others. The European Disability Strategy is based on the Treaty on the Functioning of the European Union, the EU Charter of Fundamental Rights and the UN Convention. It provides a framework for action at European level to address the situation of people with disabilities. Multilevel cooperation is emphasized in this field in order to be able to realize an effective and efficient policy. Article 6 of the Treaty on European Union stipulates that the rights, freedoms and principles set out in the Charter of Fundamental Rights are recognized by the Union with the same legal value as the Treaties.[14] "The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community".[15] The Union supports the social inclusion of people with disabilities and it can be considered a basis for the creation of a consistent disability policy at Union- and national level as well.
Hungary as part of the Eastern- and Central European countries, inherited a system from the former Communist period based on centralized residential institutions. Care for people with disabilities was primarily built on large residential institutions by the III. act of 1993 on Social Administration and Social Care (the Social Act)[16] which conserved the care system developed in the 1970s in the field of residential support services. The idea of deinstitutionalization appeared in the middle of the 1980s among professionals and parents of people with disabilities who have previously heard about or had the opportunity to visit community based services abroad. Parents appeared to give voice their concerns about human rights abuses in institutions and demanded alternative services based on the Western models.[17] The first group homes were created during the late 1980s and an increasingly growing demand appeared for individual based care after the Hungarian regime change of 1989-90. However, the possibility to replace institutional care made resistant most of the maintainers and leaders of large residential institutions during the 1990s.[18] The legal- and institutional framework of equal opportunities policy continuously developed in the country, and in accordance with the generally recognized rules of the international law, the Hungarian Parliament enacted a law in order to ensure equal opportunities for people with disabilities (1998). The Disability Act introduced that people who are able to live more independently should be cared for in smaller scale settings. The plan of deinstitutionalization appeared in 1998 with statutory deadlines and the text of the law stipulated that long-term residential institutions have to be transformed into small-scale group homes until 1 January 2010. A new type of care model appeared in the form of group homes and became specified in the Social Act. The changes were justified by the unfavorable trends appeared in the field of personal care provided by institutions during the years prior to a legal proposal from 1999 to amend the Social Act. According to the justification of this legal proposal, fundamental rights of persons with disabilities were violated in several respects due to the lack of legal regulation. The Hungarian Government in power negotiated about the situation of residential institutions and the claim of barrier-free transport for the first time in 1999.[19] According to a survey which was conducted in 2000 by the Department of Social and Family Affairs, 291 locations were declared restorable by reconstruction and 91 of the buildings were in need of total reconstruction of the 245 residential institutions operating in 350 locations. Modernization of the residential facilities appeared to be a necessity as institutions were developed mostly in nationalized buildings in monument like locations from the 1950s (Caste project).[20] Thus, parallel to the implementation of deinstitutionalization process, the reconstruction[21] of institutions began in 2001. The transition process concerning the replacement of institutional care seemed to be slow. In 2000, 15.322 long-stay residential places existed of which 123 were provided by group homes. In 2008, 1,378 residential places existed in group homes out of the total of 16.174 long-stay residential places.[22] According to the official sources, the Government is committed towards deinstitutionalization process and the lack of financial resources cause backwardness in time. While advocacy organizations argue that the Government continued to support institutional services in stead of facilitating the transition process.[23]
Institutions still remain open in Hungary which does not comply with the modern health care- and social policy based on the principles of individual autonomy and the right to live in the community. A limited number of services are available in the community today for people with disabilities. A recent international comparative study (Included in Society) focused on providing information on the living conditions and quality of life of the residents in institutions of four European countries including Hungary. According to this in-depth study which was coordinated by inter alia the association Inclusion Europe[24], the residents of Hungarian institutions, especially people in need of extensive support, often live lives characterized by hours of inac-
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tivity, boredom and isolation. Researchers, who were familiar with the cultural norms of the countries, found poor conditions and low quality services in all countries. I would like to highlight some of the main findings: "In Hungary, the rooms are huge with too many beds. Some rooms open from each other, and there is no room for anything except to lay on the bed... There are bars on the windows in the rooms for security reasons. Hospital beds are in the bedroom, and there is no room for anything but beds. Only the most able people have ordinary beds and their own cupboards, but these rooms are still not like home. The toilets have no partition, the bathrooms are in very bad condition. Residents can wake or go to bed whenever they want to, however, breakfast is at a set time in the morning, and medication is given in the evening, so in practice all residents wake up and go to bed at the same time. Residents were eating from plastic plates; they had tin cutlery and plastic glasses. All of them have diapers, so there is no toilet at night and none of them use the shower, two third of the residents stay in bed all day long and they are fed in their bed. The hair style is also typical, just a few of them take care of the style, the others have very similar, short hair... Most of the residents need little support, but because of the place, staff is not able to help them integrate into society. The management team has a so-called modernization program which tries to educate the residents for an independent life. They have a small group home in the village and they want to build new ones. According to the director, these people would not be in institutions in western countries, some of them would not even be considered disabled."[25] The spread of the human rights approach greatly contributed to the change of the professional- and policy environment in which one can talk about deinstitutionalization process. As Hungary became signatory of the UN Convention among the first countries, it devoted itself besides organizing community-based services. In 2011, the Hungarian Government initiated a process of reform, and adopted a strategy on the replacement of institutional places providing care for people with disabilities (the Strategy). The related Government Decision reflects a stronger intention of the State, which is today the maintainer of the institutions, to realize deinstitutionalization process. According to the Strategy, the aim is to move towards a system which provides smaller number placements integrated in the community and a wide range of services based on the ability of self-care and the development of this ability. To comply with international obligations, Hungary amended its domestic legislation before the implementation of the Strategy in order to support the transition process. However, the legal framework that has been established was not found to be acceptable by all of actors concerned in deinstitutionalization process.[26] In addition, taking into account the available foreign patterns, effectiveness of the Strategy and the developed legal background is questionable in a number of points.
First of all, the provisions of the country's highest legal norm aiming to promote the realization of equal opportunities shall be overviewed. The Hungarian Fundamental Law[27] recognizes the individual and collective fundamental rights of people and guarantees the right to equality for all. It is welcomed that disability is stressed among the prohibited grounds of discrimination. "Hungary ensures the fundamental rights for everybody without any discrimination namely based on race, color, gender, disability... or other status".[28] However, in some cases there is a need to make differences in order to ensure equal opportunities. The Constitutional Court explained that "the prohibition of discrimination does not mean that every differentiation aiming social equality to a greater extent shall be prohibited"[29]. The Court pointed out that positive discrimination can not be regarded as unconstitutional when a constitutional right can solely be enforced without the realization of equality in a narrower sense. The Fundamental Law therefore allows for positive discrimination. In this context, Hungary promotes the realization of equal opportunities and "protects the families, children, women, the elderly and people with disabilities with specific measures."[30] Given that the Fundamental Law presents the highest level of national legal sources, declaration of such protection has a prominent role and influences the content of other relevant laws and regulations aiming to protect the rights of people with disabilities. It shall be pointed that the Foundation of the Fundamental Law declares the responsibility of people for themselves and for their contribution to the public- and community duties. "Everybody is responsible for him- or herself and required to contribute to the performance of public and community duties in accordance to his or her skills and potentials."[31] Although these responsibilities can be deduced from the right to independent living and participation in the life of the community, the quoted sentence offers more options for interpretation and is further shaded by a number of provisions of the Fundamental Law. Based on Article XIX regulating the social protection of persons with disabilities, "(1) Hungary seeks to provide social security for every citizen of the country. Every Hungarian citizen has the right to get support defined by the law in case of... disability... (2) ... Hungary realizes social security through its social institutions and system of actions. (3) The law can establish the nature and the extent of the social actions depending on the extent of usefulness of community
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activities performed by the recipient person." The term seeks to, used in paragraph (1), suggests that the right of people with disabilities to social protection is specified as a state objective in stead of being specified as a commitment. It is difficult to interpret paragraph (3), especially in the light of the provisions aiming to protect people with disabilities. It is unclear what shall be constituted as useful community activity. Furthermore, allowing for conditionality concerning the right to social security represents an additional limit in the field of legal protection. This kind of regulation may empty the content of provisions protecting people with disabilities and may lead to the violation of the right to human dignity. Given that the Fundamental Law contains a number of expressions with uncertain content, the interpretation of the provisions may be resulted in difficulties. The use of such phrases should be avoided or their content should be clarified in a way which does not jeopardize the content of the provisions designed to protect people with disabilities. The Disability Act is intended to explain the provisions of the Fundamental Law aiming to guarantee equal opportunities. The act guarantees the right of persons with disabilities to barrier-free, sensible and safe built environment, transport and communication as well as equal access to public services. Ensuring residence, community inclusion and independent living is one of the target areas of equalization envisaged by the Disability Act which guarantees the right of individuals with disabilities to choose from three types of housing forms: living together with the family, in a small group home or in an institution. The act does not guarantee the right to personal assistance,[31] similarly to the Strategy which also lacks provisions enabling people to live independently with the help of personal assistants. The Disability Act requires institutions with over fifty residential places to be replaced with the support of EU co-financed developmental programs, according to the schedule of the Government.[33] The act refers to the UN Convention and declares that deinstitutionalization process has to be performed with regard to Article 19 of the Convention which constitutes that "people with disabilities have to be ensured to have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement". Moreover, the Convention stipulates that persons with disabilities have to be ensured to "have access to a range of in-home, residential[34] and other community support services, including personal assistance". Independent living provides the opportunity for people to make decisions beyond choosing the type of residence. In this respect, the Convention is more detailed on the measures guaranteeing the possibility of independent living compared to the Hungarian Disability Act which defines the right of people with disabilities to community inclusion and independent living in a narrower sense. The previous version of the Disability Act stipulated that long-term residential institutions have to be replaced until 1 January 2010 "by the way that people who are able to live independently with support have to be placed in group homes and people with severe disabilities have to be cared for in a modernized and humane environment". Advantageous change is that the text of the law does not differentiate provisions anymore based on care needs and severity of disabilities. However, the legislative solution that extends deadlines because of the failure of implementation process can be questioned. Moreover, the provision that allows institutional places to be replaced according to the schedule of the Government weakens the strength of the relevant provisions and makes the implementation of deinstitutionalization process pretty much dependent on the actual political will and leadership.
Residential services providing personal care are defined by the Social Act as institutions, group homes and supported housing[35] Institutions provide total care[36] for ten up to 150 people who are considered unable to take care themselves or are in need of ongoing assistance. However, the Minister responsible for social and pension policy can grant an exemption from the limit of 150 places in case of a social institution which was created in the property of a discontinued large residential institution.[37] Group homes provide services for people with disabilities as well as for psychiatric patients and addicted persons up to eight-fourteen persons with regard to the degree of self-supporting abilities.[38] According to a legal proposal[39] related to modification of the Social Act (2011), group homes do not operate in practice according to the expectations of the legislative power. Most of them are not able to support independent living and do not differ from large residential institutions only in the number of places. Accordingly, group homes are going to be phased down until 31 December 2014 and supported housing as a new construction in the Social Act was introduced in 1 January 2013. Based on Article 17 of the Disability Act on the obligation to phase down social institutions with over fifty residential places, the Strategy was accepted in 2011 and its implementation required the professional content of supported housing to be elaborated in a legal act.[40] According to the provisions of the Social Act, supported housing provides services for people with disabilities, as well as for psychiatric patients, addicted persons and homeless people in order to facilitate their independent living. Services consist of housing-, conducting-, and accompanying support services, as well as providing meals, care and
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services facilitating the participation in social life based on needs assessment. Services can be provided either in a flat or a house for six-twelve individuals, or in a home or ensemble of buildings for people up to fifty persons.[41] Supported housing reflects better to the complexities of deinstitutionalization process in comparison with the other previously introduced forms of care but its legal content does not comply neither with Article 17 of the Disability Act nor Article 19 of the UN Convention. Allowing the "rules on residential institutions to apply for supported housing otherwise"[42] can be questioned in terms of increasing the chance of institutional traditions to appear. Providing housing facilities in a residential center for fifty persons can be considered as an institution itself. Community living refers to a lifestyle in which people can live as equal citizens of their communities while receiving the support that is needed to participate in the everyday life of their residential environment. Community-based services are designed to provide access to living- and housing conditions considered ordinary by the society. The concept of supported housing regulated in the Social Act does not promote the development of a care system supporting community living of people with disabilities sufficiently.
The Strategy supports three forms of housing services integrated in the community: housing, residential home and residential center. Housing and residential homes provide housing for up to 6/12 persons in a flat or a house. These forms correspond to the construction of group homes and/or supported housing according to the terms of the Disability- and the Social Act. The text of the Disability Act lacks to provide the concept of supported housing. Back to the Strategy, residential centers provide services in a residential building or buildings ensemble for up to fifty individuals. In each case the principle is to separate the scenes of housing[43] and daily activities. From 1 January 2013, new residential alternatives can solely be created in the form of housing or residential homes. However, the Social Act provides the opportunity to create residential centers in case of the conversion of a large residential institution.[44] The more people are living together in a home, the more likely that institutional traditions are going to appear. The number of individuals living together in a small group should not be larger than the ideal to develop personal relationships with each other and with the staff. In the light of international experience, a group should be kept small and consist of approximately four persons in order to reach the best size.[45] It can be therefore questioned if a residential home for twelve persons is able to provide individualized support and privacy for its residents, meanwhile providing housing facilities in a residential center for fifty persons can be considered as an institution itself.
The study aimed to make the field of community living the subject of legal research in order to draw attention to the deficiencies of the current legal regulation concerning the replacement of large residential institutions and the promotion of community living in Hungary. As the development of community based housing forms is undergoing changes from time to time, the area requires multi-disciplinary approach. Legal perspective is found to be particularly important because the law is able to declare and mediate the significant role of social inclusion related to people with disabilities with normative force through the regulation of social behaviors. Legal regulation has influence on the creation of conditions providing people independent living and active participation in the life of society. Therefore, development of a coherent legislative framework is a priority concerning the conditions of social care and community living. The law in itself can not solve the problems encountered in practice but greatly contributes to the success by creating a framework for intervention.
The Social Act and the Disability Act should be more in coherence with each other. Establishment of a uniform terminology would be desirable in the field of naming housing forms provided for people with disabilities, and the uniform terminology should be consistently followed by the relevant legal- and other documents (see: the Strategy). It shall be pointed that the construction of residential places up to fifty persons, contained by the referenced legal acts and the Strategy, is contrary to the international recommendations concerning residential places appropriate up to thirty persons.
The institutional-protection obligations of the State contains in my view the responsibility to develop legislative- and institutional guarantees of the right to independent living and community participation with regard to the international legal standards and commitments. In this context, the constitutional recognition and highlighting of the right to be included in the life of the community would be preferable. It would have further impact on the legislative- and executive power.[46] It is hoped that the present critical analysis will offer some useful ideas for the further development in the field of law, in order to ensure a legal background which promotes the participation of people with disabilities in the social life to a greater extent.■
NOTES
[1] J. Mansell - M. Knapp - J. Beadle-Brown - J. Beecham: Deinstitutionalisation and community living - outcomes and costs: report of a European Study. Volume 1: Executive Summary. (Canterbury: Tizard Centre, University of Kent, 2007)
[2] The Convention on the Rights of Persons with Disabilities and its Optional Protocol was adopted by the UN General Assembly on 13 December 2006 and was opened for signature on 30 March 2007. It entered into force on 3 May 2008 and became the first legally binding international treaty focusing on the human rights of people with disabilities. Hungary ratified the Convention in 2007 and it became a part of the legal system as the XCII. act of 2007 on the Rights of Persons with Disabilities.
[3] 1998. évi XXVI. törvény a fogyatékos személyek jogairól és esélyegyenlőségük biztosításáról (Fot.)
[4] 1257/2011. (VII.21.) Korm. határozat (Hungarian Government Decision)
[5] European Coalition for Community Living: Creating Successful Campaigns for Community Living. p.74. http://www.community-living.info/documents/ECCL-Manual-final-WEB.pdf (accessed 3 June 2014)
[6] K. Grunewald: Close the Institutions for the Intellectually Disabled - Everybody Can Live in the Open Society. p. 2. http://www.disabilityworld.org/04-05_04/news/institutions.shtml (accessed: 1 June 2013)
[7] E. Wiersma: Institutionalization of Seniors: A Necessary Practice? (2000) Volume 27 (1) Journal of Leisurability p. 1.
[8] European Expert Group on the Transition from Institutional to Community-based Care: Common European Guidelines on the Transition from Institutional to Community-based Care. p. 10. http://wearelumos.org/sites/default/files/research/Guidelines-11-16-2012%20For%20dissemination-WEB.pdf (accessed: 3 February 2014)
[9] European Commission, Directorate - General for Employment, Social Affairs and Equal Opportunities: Report of the Ad Hoc Expert Group on the Transition from Institutional to Community-based Care. http://webcache.googleusercontent.com/search?q=cache:KWTwMwW_xAkJ:ec.europa.eu/social/BlobServlet%3FdocId%3D3992%26langId%3Den+&cd=1&hl=hu&ct=clnk (accessed: 3 February 2014)
[10] Human Rights Monitoring Institute: Human Rights Monitoring in Residential Institutions for Mentally Disabled and Psychiatric Hospitals. Monitoring Report http://gipvilnius.lt/images/failai/human_rights_monitoring_report.pdf (accessed: 5 December 2013)
[11] Recommendation of the Committee of Ministers to member states on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, Action line No. 8: Community living https://wcd.coe.int/View-Doc.jsp?id=986865 (accessed: 14 February 2013)
[12] Mansell op. cit. note 1, p. 1.
[13] K. Ericsson: Deinstitutionalization and Community Living for Persons with an Intellectual Disability in Sweden: Policy, Organizational Change and Personal Consequences. (Presentation, Disability Conference, Tokyo, 2000) p. 4.
[14] However, "the provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions". (Article 6, Treaty on European Union)
[15] Article 26 of the Charter of Fundamental Rights
[16] 1993. évi III. törvény a szociális igazgatásról és szociális ellátásokról
[17] Á. Turpenny: Deinstitutionalisation and Community-based Care for Adults with Intellectual Disabilities in Hungary: Policy Change, Challenges and Outcomes. (Tizard Centre, University of Kent, 2011) p. 117-118.
[18] Zs. Bugarszki - O. Eszik - Zs. Kondor: Az intézményi férőhely kiváltás alakulása Magyarországon, 2012-2013. (Budapest, Soteria - ELTE TÁTK, 2013) p. 31.
[19] T/1090. számú törvényjavaslat. http://www.parlament.hu/irom36/1090/1090.htm (accessed: 9 April 2014)
[20] 1257/2011. (VII.21.) Korm. határozat
[21] The implementation of the reconstruction program stopped in 2004 due to the lack of financial resources according to the related Government Decision. (Source: 1257/2011. (VII.21.) Korm. határozat)
[22] KSH, 2009
[23] Turpenny op. cit. note 17, p. 85.
[24] Inclusion Europe is a European organization which protects the interests of people with intellectual disabilities and their families. In 2002, the European Parliament asked for a study in order to be able to analyze the situation of people with disabilities living in institutions in Europe. Researchers have visited institutions of the countries (inter alia Hungarian institutions) and interviewed the managers and spent time with observing the environment. The project did set the task of developing policy proposals in favor of community based services.
[25] G. Freyhoff - C. Parker - M. Coué - N. Greig: Included in Society. Results and Recommendations of the European Research Initiative on Community-Based Residential Alternatives for Disabled People. p. 44-48. http://www.community-living.info/contentpics/226/Included_in_Society.pdf (accessed: 31 October 2013)
[26] Bugarszki op. cit. note 18, p. 37.
[27] Magyarország Alaptörvénye (2011. április 25.) It replaced the former Constitution from 1 January 2012 (subsequently went through a number of modifications) and became formally the highest source of the Hungarian legal system.
[28] Magyarország Alaptörvénye, XV. cikk (2)
[29] 9/1990. (IV. 25.) AB határozat
[30] Magyarország Alaptörvénye, XV. cikk
[31] Magyarország Alaptörvénye, Alapvetés, O) cikk
[32] The right to personal assistance allows independent living for people with disabilities in a number of countries today. It refers to a personalized support with the cooperation of one or more personal assistants, for people who are in need of assistance with their basic needs because of severe and permanent disabilities. Of the community based services that are necessary for participating
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in society on equal terms, personal assistance has been identified as one of the biggest achievements and critical prerequisite for a dignified and productive life for people with disabilities. It enables people to live independently, to study, to work and to participate in the life of their community, regardless of the severity of disabilities.
[33] Fot. 17.§ (2)-(4)
[34] The official Hungarian translation (found in: XCII. act of 2007 on the promulgation of the UN Convention) of the UN Convention on the Rights of Persons with Disabilities uses the term "institutional", meanwhile the Convention uses the term "residential".
[35] 1993. évi III. törvény a szociális igazgatásról és szociális ellátásokról (Szt.), 57. §
[36] Total care includes three meals a day, clothing, mental health care and housing.
[37] Exemption can not be granted in case of a social institution which was created under the strategic program for 2011-2041 on deinstitutionalization process. Szt. 57. §
[38] Szt. 85/A. §
[39] T/7678 számú törvényjavaslat, http://www.parlament.hu/irom39/07678/07678.pdf (accessed: 12 June 2013)
[40] New provisions on supported housing were added to the Social Act by the CXVIII. act of 2012 on the amendment of the legal acts on certain social matters (az egyes szociális tárgyú és egyéb kapcsolódó törvények módosításáról szóló 2012. évi CXVIII. törvény)
[41] Szt. 75. §
[42] Szt. 75. § (4)
[43] Housing is provided in an integrated residential environment while the housing facility serving as one's home does not belong to the property of the person living there.
[44] Szt. 140/P. §
[45] K. Grunewald: The intellectually handicapped in Sweden. New legislation in a bid for normalization. (Stockholm, Svenska Institutet, 1986) p. 3.
[46] The Charter of Fundamental Rights can serve as a model. It records in its previously cited Article 26 that "the Union recognizes and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community".
Lábjegyzetek:
[1] The Author is PhD-Student.
Visszaugrás
