Auto 006 of 2009
In 2004, the Constitutional Court of Colombia decided case T-025, where it declared an unconstitutional state of affairs in regards to the situation of millions of internally displaced persons (IDPs) due to the country’s armed conflict. The unconstitutional state of affairs was due to the massive human rights violations associated with systemic failures in the safeguarding of IDPs by the State. In order to put an end to the unconstitutional state of affairs, the Court established a structure for follow-ups that consisted of two types: (1) special proceedings to evaluate the progress made by various state agencies, in which agencies were required to provide periodic reports on their compliance with the Court’s orders; and (2) autos de seguimiento, additional written materials from the court which expanded and clarified the Court’s orders in T-025, with specific focus on groups of persons at greater vulnerability and disproportionately impacted by the internal armed conflict. Auto 006 of 200 is one of such orders, referring specifically to the situation of persons with disabilities.
The Court first surveyed the domestic and international jurisprudence and legal frameworks guaranteeing the rights of persons with disabilities. The Court noted various articles under Colombia’s Constitution that protect the rights of persons with disabilities. Article 13 of the Colombian Constitution “specially” protects persons with disabilities, and Article 47 requires the State to advance policies that prevent discrimination and violation of the rights of persons with disabilities, that rehabilitate any such violations, and that integrate the rights of persons with disabilities holistically into the broader human rights framework. In addition, Article 54 guarantees the right to equal working conditions for persons with disabilities, affording them the appropriate accommodations. Article 68 guarantees the rights of persons with mental health disabilities.
The Court then noted Colombia’s “ample jurisprudence” on disability rights. Said precedent requires the Colombian State to safeguard persons with disabilities’ (1) right to equality with regard to the general population; (2) advance pertinent public policies that achieve the equal and holistic integration of persons with disabilities; and (3) treat persons with disabilities with specialized care to account for the systematic marginalization and discrimination they face on account of disability. Additionally, the Court’s jurisprudence categorizes discrimination based on disability in two ways: (1) the discriminatory attitude; and (2) the discriminatory act.
The Court notes the vast amount of international instruments aimed at guaranteeing and protecting the rights of persons with disabilities. These include the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rgihts, Convention on the Rights of Persons with Disabilities, Convention on the Rights of the Child, the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, and the San Salvador Protocol. The Court also made reference to the General Assembly’s “Declaration on the Rights of Persons with Disabilities”, its “Principles for the protection of persons with mental illness and for the improvement of mental health care”, as well as its “Standard Rules on the Equalization of Opportunities for Persons with Disabilities.” In addition, the Court referred to the United Nations Committee on Economic, Social and Cultural Rights’ General Comment No. 5 on equal treatment of persons with disabilities. All of these instruments call for preventative and anticipatory measures to be implemented by State Parties in regards to persons with disabilities, and require States Party to take measures that achieve not only non-discrimination, but also full and equal integration of persons with disabilities into society.
Despite the obligations Colombia has both domestically and internationally, the Court found that generally, persons with disabilities are not considered a protected class in Colombian society and therefore, they are rendered “practically invisible.” One clear way in which this invisibility is manifested is by the lack of any complete and consistent data gathering on the numbers and situation of displaced persons in Colombia that have a disability. The Court noted inconsistent and insufficient reporting of the percentage of persons with disabilities. For instance, the Register of Displaced Persons only noted 15,411 persons with disabilities in the displaced population. Contrastingly, but still quite low, the Colombian Social Security Ministry reported only 24,252 persons with disabilities in the displaced population.
The Court found that the lack of thought given to disability is a strong indicator as to why there is such a lack of information of the magnitude of persons with disabilities in the displaced population. It notes that, “since people with disabilities are not seen, it is presumed that they are not there, and thus they are not included.” For instance, many of the information-gathering surveys used for the displaced population do not ask questions about disabilities. If they do, they often use imprecise categories or characterization of disabilities with which surveyed participants do not identify. Finally, the Court notes that lack of information and education about disability rights more broadly means people with disabilities may not even know this is something that they report and claim corresponding rights for.
The lack of information creates yet another barrier for the State to properly address the grave situation of persons with disabilities in the context of armed conflict and displacement, in which their already dire situation is further aggravated through acute marginalization and exclusion.
The Court noted that not only does the armed conflict exacerbate existing disabilities; it also creates new disabilities. The Court identified risks associated with the armed conflict, including risk of exacerbation of disability due to risks such as mine explosions, crossfire, psychological impact, hunger, malnutrition, and loss of family support; risk of being abandoned due to their disability; and physical inability to flee situations of harm.
This is aggravated in the context of displacement, where displaced persons with disabilities experience: exclusion from aid due to structural prejudice and discrimination by public officials against persons with disabilities; physical and and transportation barriers (as well as distance issues) when trying to access aid centers; barriers to information and communication (many believe of heightened protections beyond the right to health); and loss of support network (they may be seen as a burden during displacement and thus the risk of being abandoned increases). The Court also noted that persons who have psychosocial health disabilities are the most affected by the armed conflict and displacement yet receive the worst treatment because of a “complete absence” of understanding of mental health.
The Court focused on certain sectors that were prone to exacerbated impacts from displacement. This included children, older persons, women and girls, as well as Indigenous Persons. According to the Court’s findings, women with disabilities are at particular risk of being invisibilized, yet there is no differentiation in treatment, even though they have a differentiated experience.
Regarding children, the Court noted the severe barriers children with disabilities face when attempting to access education. These include physical barriers that prohibit them from entering school buildings, as well as lack of accommodations--such as Braille, visual aids, among others--for students with disabilities. Notably, the court spent time discussing the situation of care workers as well, and how the State’s inaction to protect the disability rights affects them as well. For instance, the Court highlighted how the absence of a social safety net for persons with disabilities disproportionately affects mothers who are heads of their household, who must take on the responsibility of caring for them in the face of the absence of any government aid and thus are unable to enter the labor market, are unable to enter labor market and earn money, receive no psychological support and have no time for leisure and resting.
In evaluating the government’s response, the Court noted that although there were some efforts by the government to document the situation of displaced persons with disabilities, these lacked actionable steps to improve conditions. For instance, the Court could not find any information in the Government’s plans regarding persons with disabilities about addressing the barriers to receiving aid due to the prejudice of public officials, nor information on how to address the disintegration of families with relatives with disabilities due to the armed conflict and ongoing displacement. Instead, government reports can be summarized as pointing to the fact that a national policy on disability exists but lacks any concrete steps to remediate the situation recognized.
The national policy has achieved little. For instance, even though the majority of persons with disabilities are in need of job training to enter the labor market, only 713 have received said training. Additionally, the government identified 5,814 persons with disabilities in need of housing, yet only 1,372 persons have received help from the government to obtain appropriate housing.
In response, the Court issued the following orders: (1) improve information gathering on the situation of displaced persons with disabilities; (2) design and implement a new program that focuses on prevention of special risks to persons with disabilities in the armed conflict; (3) five pilot programs focusing on prevention and protection of displaced people with disabilities; and (4) individual relief for 15 persons requesting aid in relation to disability.
The Court gave a timeframe of six months to design and implement the new program, and required the following minimum criteria: provision of accurate and complete information regarding fleeing routes and trainings on the safest way to flee, taking into account disabilities; training of public officials to look for/ask about disabilities and to not be prejudiced; job training programs for persons with disabilities; strengthening of social services for persons with disabilities who are displaced; public education regarding disability & the heightened rights/protection afforded to this community; and provision of appropriate housing in host spaces post-displacement. Additionally, the Court noted the program must be specific, must guarantee continuity into the future, must include clear benchmarks of progress as well as systems for correcting policy failures, and must include periodic reporting and monitoring. During the design process, the government must invite the active participation of domestic and international civil society, in particular, persons with disabilities as well as organizations that advocate for disability rights.
In Auto 173 of 2014, the Court followed up on the status of the orders it had issued in Auto 006 regarding persons with disabilities in the context of the armed conflict and forced displacement. In terms of critical populations within the displaced community that has disabilities, the Court found that children with disabilities continue to be excluded in a significant way and that the intersection of old age and disability continues to be worrying, given that older persons may have no assistance from the state.
The Court noted some progress with regards to the collection of information on displaced persons with disabilities. For instance, a disability qualifier was added in 2011 to the survey for displaced persons, as well as in various other government forms related to the displaced population. The conglomeration of data from various agencies also led to more realistic and accurate numbers of persons with disabilities in the displaced population. Nevertheless, the Court found this to be still insufficient. The numbers of persons with disabilities continue to be underreported and thus this leads to the incorrect impression that few displaced persons have a disability and subsequently limits the state’s ability to look at the situation from an intersectional lens and improve conditions more holistically.
Regarding the five pilot programs for prevention, the Court found that although they were carried out, the State did not follow the orders of the Court regarding the minimum requirements. Mainly, the State failed to incorporate or involve any member of the displaced community with disabilities. Additionally, there was a lack of clear goals or milestones, and the information gathered was not properly organized.
In terms of the creation of the new program, it began one and a half years late, in 2011, which the Court considered to be an “unjustified delay”. The program’s progress was hindered by the lack of specific information gathering. For instance, it was still unclear to the State what percentage of state-provided housing was adequate for persons with disabilities in their new host sites. This lack of information made it practically impossible to remediate the barriers that persons with disabilities face during displacement. The Court thus found no real progress was made in terms of prevention and it also found that the State violated one of the requirements when it failed to involve any member of the community in the design of the program.
The Court makes an effort to identify how the barriers persons with disabilities experience in the context of forced displacement are not monolithic and intersects with other identities and circumstances that impose distinct and disproportionate burdens.