Exception Should Prove Dignity – Statement of the Commissioner for Fundamental Rigths on the Special Situation of Persons with Intellectual Disability and Autism Spectrum Disorder in Relation to the Restrictions Introduced in Response to the Pandemic

The Commissioner for Fundamental Rights calls attention to the everyday struggles of the most vulnerable members of society, i.e. persons living with intellectual disability, during the coronavirus pandemic, thus to their difficulties in observing the rule of wearing masks and keeping social distance. On this occasion, Dr Ákos Kozma also welcomes the latest government decree of 19 November, which allows divergence from the general pandemic protection rules for persons with autism.

It is a general experience that at the time of the increase of the coronavirus pandemic, as a result of the restrictions that have been ordered, everybody is forced to isolate, so people usually do their best to protect themselves and the others. During such protection, the isolation of persons with intellectual disability and autism spectrum disorder is an especially sensitive issue.

The almost fifteen-year research and rights protection activity of the Hungarian Ombudsman institution regarding persons with disabilities is almost the same age as the UN Convention on the Rights of Persons with Disabilities (CRPD) that took effect in 2007. Hungarian Ombudsmen generally investigated into the lives of persons with disability in a wider range, including the situation of those with autism spectrum disorder or intellectual disability.

The government decree on the protection measures in the state of epidemiological preparedness ordered the wearing of medical or labor protection masks made of textile or another material that continuously cover the mouth and the nose in many walks of life. Then another government decree introduced even further stringencies as a result of the aggravation of the epidemic, according to which in the residential areas of any settlements with a population exceeding 10,000, it is obligatory to wear masks in the public areas designated by the municipality and in public places, with the exception of parks and green areas, and in the course of sports activities.

The necessity to require the wearing of masks in as wide a range as possible is not to be disputed in itself, with regard to the pandemic. However, the proportionality of the measure can be ensured by those very safeguards which also reckon with the enforcement of the right of the individual groups of persons with disability to dignity. When the protection measures are adopted, the perspectives of the persons concerned should be considered with the same respect and caution. 

One of the basic pillars of the CRPD is the concept of “reasonable accommodation”. This means such indispensable and appropriate modifications and changes which do not cause disproportionate and unjustified burdens and which, as the case may be, are necessary for exercising the equal fundamental rights of persons with disability. The Ombudsman thinks that the key to solving this question is the possibility to balance social opportunities, on the basis of getting informed and acceptance, as is supported by practice and theory as well.

For persons with autism and intellectual disability, it is difficult to understand social rules, these persons tend obsessively to stick to their own routines, and to behave in an inflexible way. Their parents, care providers and supporters do their best to protect them and their environment, by taking the effective protective measures into account. As consequence of the stricter emergency rules, however, the changed behavior of the supporting persons who provide them security, as well as that of the environment means a serious problem for persons with a disability in their everyday lives, during travel, education or shopping, and at the same time, they cannot observe the rules, which is not their own fault and which arises from their condition or situation.

In the fundamental principles of the CRPD, the inherent dignity of humans is stipulated first of all. This is an inviolable and unlimited right according to the Hungarian fundamental rights practice too, it is an absolute right. This is why the Ombudsman draws attention to that, even in this extraordinary period, which is difficult for everyone, it is crucial to keep the special needs of children and adults with disability in mind, furthermore, active efforts are to be taken for supporting them and their helpers with measures adjusted to their individual needs, in order for them to be able to enforce their fundamental human rights more comprehensibly.

By taking all this into account, the Commissioner for Fundamental Rights welcomes the latest decree of the Hungarian Government, which was issued on 19 November, in which it was made possible for persons with autism to diverge from the general protection rules related to the epidemic.