CRPD/C/34/D/78/2020

GE.26-04637 (E) 270426 280426

Committee on the Rights of Persons with Disabilities

Views adopted by the Committee under article 5

of the Optional Protocol, concerning communication

No. 78/2020*, **

Communication submitted by:

Lívia Černáková (represented by counsel, Maroš

Matiaško, of Forum for Human Rights)

Alleged victim:

Lucia Černáková

State Party:

Slovakia

Date of communication:

8 August 2018 (initial submission)

Document references:

Decision taken pursuant to rule 68 of the

Committee’s rules of procedure, transmitted to

the State Party on 29 January 2020 (not issued in

document form)

Date of adoption of Views:

26 March 2026

Subject matter:

Failure to interview a woman with disabilities

following abuse in an institution

Procedural issues:

Exhaustion of domestic remedies; substantiation

of claims

Substantive issues:

Equality and non-discrimination; women with

disabilities; equal recognition before the law;

access to justice; freedom from torture or cruel,

inhuman or degrading treatment or punishment;

freedom from exploitation, violence and abuse

Articles of the Convention:

5, 6, 12, 13, 15 and 16

Article of the Optional Protocol:

2 (d) and (e)

* Adopted by the Committee at its thirty-fourth session (9–27 March 2026).

** The following members of the Committee participated in the consideration of the communication:

Muhannad Salah Al-Azzeh, Magino Corporán Lorenzo, Gerel Dondovdorj, Gertrude Oforiwa

Fefoame, Amalia Eva Gamio Ríos, Natalia Guala Beathyate, Kim Mi Yeon, Alfred Kouadio Kouassi,

Abdelmajid Makni, Floyd Morris, Christopher Nwanoro, Markus Schefer and Hiroshi Tamon.

Pursuant to rule 60 of the Committee’s rules of procedure, Inmaculada Placencia Porrero did not

participate in the consideration of the communication.

United Nations

CRPD/C/34/D/78/2020

Convention on the Rights

of Persons with Disabilities

Distr.: General

28 April 2026

Original: English

CRPD/C/34/D/78/2020

2

GE.26-04637

1.1

The author of the communication is Lívia Černáková. She submits the communication

on behalf of her daughter, Lucia Černáková, a national of Slovakia born in 1983. The author

claims that the State Party has violated the rights of Ms. Černáková under articles 5, 6, 13,

15 and 16 of the Convention. The Optional Protocol entered into force for the State Party on

25 June 2010. The author is represented by counsel.

1.2

On 15 April 2020, the State Party requested that the admissibility of the

communication be examined separately from the merits. On 24 March 2021, the Committee,

acting through its Special Rapporteur on new communications and interim measures, denied

the State Party’s request.

A.

Summary of the information and arguments submitted by the parties

Facts as submitted by the author

2.1

Ms. Černáková has an intellectual disability and an autism spectrum disorder. On

29 January 2002, Nitra District Court deprived her of her legal capacity and appointed the

author as her guardian. From 2 August 2010 until 31 May 2013, Ms. Černáková was

institutionalized in Harlekýn Social Care Home in Topoľčany. During this period, she was

beaten by employees of the institution, who instructed other residents to beat her as well. She

was tied up at least six times in what she described to the author as a straitjacket. Once, her

legs were tied up with a diaper. When anxious, Ms. Černáková would scream, and the staff

would respond by restraining her and tying her up until she stopped. She was locked in an

isolation room every night for six weeks to prevent her from calling the nurses.

2.2

On 21 April 2011 and 19 September 2013, the author complained about

Ms. Černáková’s ill-treatment to Nitra Regional Authority, the supervisory body of Harlekýn

Social Care Home. On 18 October 2013, the Authority conducted an inquiry at the institution,

together with the author and Ms. Černáková. On 31 October 2013, it concluded that the

complaint was manifestly ill-founded. On 14 November 2013, the author submitted a new

complaint to the same Authority, which it dismissed on 20 November 2013.

2.3

On 9 February 2015, the author filed a criminal complaint of abuse with Topoľčany

Police Department, claiming that Ms. Černáková had been repeatedly beaten, including with

sticks, by the institution staff and by other residents on the instruction of the staff, slapped,

restrained at least six times in a straitjacket, left to sleep on the floor, which resulted in a

chronic inflammation of her kidneys, given the wrong psychiatric medication, not treated in

accordance with her health status, and treated inappropriately by the personnel, who called

her “devil’s semen”. On 20 March 2015, Topoľčany Police Department dismissed the

complaint on the absence of grounds to open an investigation. The preliminary investigator

interviewed the director of Harlekýn Social Care Home, but not Ms. Černáková. On 22 April

2015, the Topoľčany District Prosecutor dismissed the author’s complaint against the

decision of Topoľčany Police Department. On 5 and 28 May 2015, the author complained

about the outcome of the investigation to the Regional Prosecutor’s Office in Nitra. On

17 July 2015, the Regional Prosecutor upheld the decision by the District Prosecutor not to

open an investigation into the crime of abuse but ordered that an investigation be opened into

the crime of restricting Ms. Černáková’s personal liberty under article 183 of the Criminal

Code.

2.4

During the new investigation, the director and staff members of Harlekýn Social Care

Home were interviewed. All of them denied that Ms. Černáková had been restrained in a

straitjacket or locked in an isolation room. Ms. Černáková herself was not interviewed. On

10 March 2016, the investigator of Topoľčany Police Force District requested a

psychological expert opinion on whether Ms. Černáková had the capacity to “correctly

perceive, remember and reproduce” the events under investigation and whether she tended

to “confabulate”. In his expert opinion dated 10 May 2016, the expert concluded that

Ms. Černáková had a “medium severe intellectual disability”, that her thinking was “without

a capacity to rationalize” and that she had “no general [or] specific credibility” due to her

“mental deficiency, emotional liability and behavioural disorders”. On 26 January 2017, the

investigator discontinued the investigation on the grounds that no offence had been

committed. On 14 March 2017, Topoľčany District Prosecutor’s Office confirmed that

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decision. On 15 June 2017, the Constitutional Court dismissed the author’s constitutional

complaint against the decisions of 26 January and 14 March 2017 as manifestly ill-founded,

finding that the investigator and the District Prosecutor had not infringed any of

Ms. Černáková’s procedural rights.

2.5

On 2 July 2019, following repeated complaints by the author, the Ministry of Labour,

Social Affairs and Family filed a motion to the General Prosecutor’s Office to investigate the

complaint of abuse. The motion was transmitted to Topoľčany District Prosecutor’s Office.

According to the latter’s statement of 20 August 2019, the alleged abuse had already been

investigated in 2015. Topoľčany District Prosecutor’s Office therefore considered that the

request by the Ministry duplicated the subject matter of the prior investigation.

Complaint

3.1

The author submits that the State Party failed to conduct an effective investigation

into her daughter’s ill-treatment. Through the author, Ms. Černáková provided detailed

descriptions, including the names of specific staff members of Harlekýn Social Care Home

who had abused her. She made those allegations repeatedly and consistently to Nitra Regional

Authority and the criminal justice authorities and provided all available evidence, which, she

submits, should have sufficed for the Regional Prosecutor’s Office to order the police to open

an investigation.

3.2

Referring to article 12 of the Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment, the author argues that the authorities had sufficient

grounds to initiate an investigation ex officio,1 given her credible assertions of ill-treatment,

and that the State Party was therefore obliged to conduct an official investigation. She argues

that articles 15 (2) and 16 (5) of the Convention on the Rights of Persons with Disabilities

recognize the procedural obligation to effectively investigate credible assertions of torture,

cruel, inhuman and degrading treatment or punishment, exploitation, violence and abuse.2

3.3

The author refers to international and regional standards providing that a criminal

investigation and the prosecution of those responsible is a necessary remedy for torture and

ill-treatment,3 that the investigation must seek to obtain statements from the victim of the

alleged torture and to determine the circumstances,4 that the authorities must proactively

support victims with disabilities to understand criminal proceedings and be understood,5 that

the enjoyment of the right to freedom from exploitation, violence and abuse can be hindered

by harmful stereotypes, particularly in relation to women with disabilities,6 and that the State

Party has a due diligence obligation to effectively investigate allegations of violent acts,

particularly against women.7 The author argues that an effective investigation requires the

investigating authorities to take into account manifestations of distress, non-verbal

indications of violence and the victim’s potentially limited or apparently confusing verbal

narrative. Persons with intellectual disabilities often rely on family members to report

violence and face difficulties because of their experiences of discrimination, leading to

anxiety or defensiveness, particularly in the presence of perceived authority features such as

doctors, police and lawyers, and are at increased risk of acquiescing, complying and being

suggestible. This requires appropriate interviewing techniques.

3.4

However, in the present case, the authorities did not commission an expert opinion on

how to question Ms. Černáková appropriately, her skills in terms of being interviewed or the

1 Blanco Abad v. Spain (CAT/C/20/D/59/1996), para. 8.3; and Thabti v. Tunisia

(CAT/C/31/D/187/2001), para. 10.5.

2 X. v. United Republic of Tanzania (CRPD/C/18/D/22/2014), para. 8.6; CRPD/C/OMN/CO/1,

para. 32; CRPD/C/SVN/CO/1, para. 28; CRPD/C/SDN/CO/1, para. 14; CRPD/C/HTI/CO/1, para. 31;

CRPD/C/RUS/CO/1, para. 37; and CRPD/C/MNE/CO/1, para. 33.

3 Suleimenov v. Kazakhstan (CCPR/C/119/D/2146/2012), para. 8.3.

4 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (Istanbul Protocol), para. 77.

5 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing

minimum standards on the rights, support and protection of victims of crime.

6 General comment No. 3 (2016), para. 30.

7 CRPD/C/SVK/CO/1, para. 48.

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support she would require. Thus, due to stereotypes about her credibility, she was prevented

from participating effectively in the proceedings, in violation of articles 15 (2) and 16 (5) of

the Convention. The authorities’ dismissive attitude is also apparent from their failure to

interview any other residents of the institution.

3.5

The author also claims a violation of Ms. Černáková’s rights under article 13 of the

Convention. As Ms. Černáková was not interviewed, her credibility as a witness was

dismissed and she was not provided with support or accommodation, thereby preventing her

from exercising her right of access to justice. The author posits that persons with disabilities,

especially women, face barriers in access to justice owing to harmful stereotypes,

discrimination and lack of procedural and reasonable accommodation.8 The Committee has

recommended that the State Party amend its procedural rules to ensure that persons with

intellectual disabilities are provided with procedural accommodation from the outset.9

3.6

As Ms. Černáková’s right to access to justice was not ensured on the grounds of her

disability and gender, she was subjected to discriminatory treatment in violation of

articles 5 (1) and (2) and 6 of the Convention.10

3.7

The author requests that an effective remedy be provided to Ms. Černáková, including

reimbursement of legal costs, compensation and an apology, that an impartial, speedy and

effective

investigation

is

held,

with procedural accommodation

provided

for

Ms. Černáková’s effective, direct participation in the proceedings, and that the Committee’s

Views be translated into Slovak and widely circulated in accessible formats so that they are

available to all sectors of the population. Regarding measures of non-repetition, the author

requests the Committee to invite the State Party to prohibit and repeal practices and

provisions allowing persons with disabilities to be denied direct participation in proceedings

and to be interviewed as witnesses, to adopt policies and instructions providing for reasonable

and procedural accommodation, to provide safeguards against abuse in social care

institutions and independent monitoring of the implementation of care standards and to train

judges, lawyers, law enforcement personnel and care institutions on the prohibition of torture,

ill-treatment and abuse of persons with disabilities, including women with disabilities.

State Party’s observations on admissibility

4.

In its observations dated 15 April 2020, the State Party refers to the conclusion in the

expert opinion regarding Ms. Černáková’s lack of credibility and “mental retardation”. It

notes that, under Act No. 448/2008 on social services and Act No. 455/1992 on trade

licensing as amended, where a life is directly endangered or the health of the social service

recipient or other persons is directly endangered, the social service recipient may be “limited”

for the time necessary to eliminate the threat. Means of physical restraint include special

handles, placing the social service recipient in a safe-stay room or administering medication

pursuant to the instructions of a psychiatrist. The social service provider is obliged to notify

the Ministry of Labour, Social Affairs and Family of any such restrictions. The State Party

therefore requests the Committee to declare the communication inadmissible as insufficiently

substantiated under article 2 (e) of the Optional Protocol.

Author’s comments on the State Party’s observations on admissibility

5.

In her comments dated 15 June 2020, the author argues that the State Party’s reference

to Ms. Černáková’s “mental retardation” and the expert opinion reflects a strictly medical

approach to disability aimed at discrediting her and holding her responsible for the State

Party’s violations, contrary to article 12 (3) and (4) of the Convention. The State Party fails

to acknowledge that Ms. Černáková made credible assertions, that she was not

accommodated, that no effective investigation was conducted and that its domestic

framework on restraint measures is incompatible with the Convention. Thus, the State Party

8 A/67/227, para. 42; A/HRC/20/5 and Corr.1, para. 41; general comment No. 3 (2016), para. 52;

CRPD/C/KEN/CO/1, para. 25; and CRPD/C/SLV/CO/1, para. 29.

9 CRPD/C/SVK/CO/1, para. 41.

10 “Failure to provide procedural accommodation required by a person with disabilities thus constitutes

a form of discrimination on the basis of disability in connection with the right to access to justice”

(A/HRC/37/25, para. 25).

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replicates the domestic authorities’ discrimination, stereotypes and stigma against persons

with intellectual disabilities and erroneously and discriminatorily assumes that they are not

credible and that service providers always comply with their legal obligations.

State Party’s observations on admissibility and the merits

6.1

In its observations dated 22 September 2021, the State Party submits that its

authorities have taken the legislative, administrative, judicial and other measures necessary

to prevent torture and cruel, inhuman or degrading treatment and punishment of persons with

disabilities on an equal basis with others. Section 10 of the Act on Social Services stipulates

that it is not allowed to use non-corporal and physical restraint against the social service

recipient in facilities except when the life or health of a person is directly threatened.

Accordingly, the dignity of the recipient must never be compromised. The Ministry of Labour,

Social Affairs and Family maintains a register of restrictions used for the purpose of State

oversight. Independent bodies such as the Public Defender of Rights, the Commissioner for

Persons with Disabilities and the Commissioner for Children conduct regular monitoring.

6.2

The State Party notes that, despite several investigations, none of the author’s

allegations of abuse were confirmed. In its decision of 15 June 2017, the Constitutional Court

held that the right to judicial protection did not entail a right to a criminal prosecution or

conviction and found that the law enforcement authorities had correctly established that no

crime had been committed against Ms. Černáková. The Ministry of Labour, Social Affairs

and Family also investigated Harlekýn Social Care Home, but the investigation did not reveal

that Ms. Černáková had been treated as the author claimed. Nitra Self-Governing Region

repeatedly examined the allegations and suggested that the author change Ms. Černáková’s

social service provider. In addition, the independent Office of the Commissioner for Children

conducted human rights monitoring at Harlekýn Social Care Home in 2019. According to the

latter’s director, the author had had “verbal conflicts” with the parents of other residents who

claimed that Ms. Černáková had attacked them.

6.3

The State Party observes that the Anti-Discrimination Act prohibits discrimination on

grounds of gender and disability, among others, and covers direct and indirect discrimination.

Pursuant to domestic jurisprudence, complainants of discrimination must state the specific

grounds on which they have been discriminated against. However, the author’s and

Ms. Černáková’s complaints did not specify any such grounds. The complainant bears the

burden of proof to establish prima facie that discrimination occurred. In the present case, the

author’s allegation of gender-based discrimination does not show that such discrimination

occurred. The author did not make any allegations from which it could be concluded that

Ms. Černáková was discriminated against. According to the State Party, a subjective feeling

or deep conviction without any further evidence cannot be regarded as proof of a violation

of the principle of equal treatment.

6.4

The State Party observes that the author filed a communication with the Committee

against Torture on behalf of Ms. Černáková, but that the facts in that case were not the same

as those in the present communication. Therefore, the State Party does not object to the

admissibility of the present communication under article 2 (c) of the Optional Protocol.

6.5

According to the State Party, if Ms. Černáková believed that her human dignity had

been violated, she could have filed a civil action “relating to personality” against Harlekýn

Social Care Home. However, she did not do so. She also did not invoke discrimination based

on gender during the domestic proceedings, and the courts did not consider this.

6.6

In relation to the author’s claims under articles 5 and 6 of the Convention, the State

Party argues that the domestic authorities found that the investigation had been conducted in

compliance with applicable legislation, considering Ms. Černáková’s status as a person with

disabilities, including her gender. According to the State Party, the author’s statements do

not support the allegation of discrimination, including in the light of the conclusions of the

expert opinion and the time taken by the author to file a criminal complaint after the

occurrence of the alleged abuse.

6.7

Under article 13 of the Convention, the State Party observes that the author of the

expert opinion, who has many years of experience, drafted the opinion after having

acquainted himself with the file and having conducted a psychological examination of

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GE.26-04637

Ms. Černáková. Apart from the author’s complaints and objections, no relevant facts

challenging the expert opinion were produced. The expert opinion and the results of the

investigation were therefore correct.

6.8

As for the fact that Ms. Černáková was not interviewed, the State Party observes that,

pursuant to article 48 (1) of the Code of Criminal Procedure, if the aggrieved party is unable

to execute legal actions, that party’s rights may be exercised by the lawful representative, in

this case, by the author. The State Party argues that the investigator’s decision not to question

Ms. Černáková was not arbitrary or discriminatory in view of the conclusions of the expert

opinion. The decision to close the criminal procedure on the basis only of the testimonies of

the accused, whose statements enabled the investigator to establish the facts, does not mean

that the facts were insufficiently examined. In addition, Ms. Černáková remained in Harlekýn

Social Care Home from 2010 until 2013, but the author filed a criminal complaint only in

February 2015. This made it more difficult to secure evidence and interview witnesses and

“weakens the good intention” of the author to protect Ms. Černáková’s rights. Given the

sufficient procedural guarantees to protect Ms. Černáková’s rights and interests under

article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms

(European Convention on Human Rights), on the right to a fair trial, the fact that she was not

questioned does not amount to a violation of article 13 of the Convention on the Rights of

Persons with Disabilities.

6.9

According to the State Party, the nature of the author’s allegations that Ms. Černáková

was not interviewed and that her statements were not considered cannot be connected with

the purpose of article 16 of the Convention. Said provision has therefore not been breached.

Author’s comments on the State Party’s observations on admissibility and the merits

7.1

In her comments dated 24 June 2022, the author argues that the State Party has not

addressed any of her claims. Even if the State Party’s legislation on the use of restraints

complied with the provisions of the Convention, which is not part of the author’s claims, that

is not relevant for the assessment of the State Party’s fulfilment of its obligation, under

articles 15 and 16 of the Convention, to conduct a prompt, effective, impartial and

participatory investigation into Ms. Černáková’s ill-treatment. While there is no right to an

investigation, any investigation must satisfy certain criteria, including a participatory nature,

under article 13, read in conjunction with articles 5, 15 and 16 of the Convention. Not only

was Ms. Černáková not interviewed, but the expert opinion deemed her statements unreliable

based simply on her disability, which is an outrageous denial of agency to any person with a

disability. According to the author, although she is Ms. Černáková’s guardian, her

participation cannot substitute for Ms. Černáková’s. Not only is partial guardianship in

violation of article 12 of the Convention, but the procedural obligation to investigate arguable

claims can only be satisfied if the authorities provide procedural accommodation and take all

steps necessary to ensure the participation of the person with disabilities and establish the

relevant circumstances, including information that the investigator could only have obtained

from Ms. Černáková.

7.2

The author disagrees that she shoulders the burden of proof to establish discrimination;

as the evidence presented establishes discrimination prima facie, it is up to the State Party to

demonstrate that discrimination did not occur and to explain why it did not provide

procedural accommodation. According to the author, the State Party failed to consider that

Ms. Černáková was discriminated against through the compounded effect of her being a

woman and a person with a disability, including as the investigating authorities’ only focus

was to question her ability to recall events accurately.

B.

Issues and proceedings before the Committee

Consideration of admissibility

8.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with article 2 of the Optional Protocol and rule 70 of its rules of

procedure, whether the communication is admissible under the Optional Protocol.

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8.2

The Committee considers that it transpires from the present communication that the

alleged victim is the author’s daughter and a person with disabilities within the meaning of

article 1 of the Convention and that she is claiming her rights under the Convention through

the author’s representation. Therefore, the Committee concludes that the author has jus standi

under article 1 of the Optional Protocol and that it is not precluded from considering the

present communication on the basis of that provision.11

8.3

The Committee notes that the State Party does not object to the admissibility of the

communication under article 2 (c) of the Optional Protocol as the facts complained of are not

the same as those examined by the Committee against Torture in its Views adopted on

another communication concerning Ms. Černáková.12 The Committee therefore finds that

said provision does not preclude it from examining the present communication.

8.4

The Committee notes the State Party’s contention that Ms. Černáková could have

raised her claim of discrimination against women with disabilities in the court proceedings

and that she could have filed a civil action against Harlekýn Social Care Home. The

Committee notes that the author has not explained why she could not have raised her claim

of discrimination against women with disabilities before the domestic authorities. The

Committee therefore finds that the author has not exhausted all available domestic remedies

in relation to her claim under article 6 of the Convention, which it declares inadmissible

pursuant to article 2 (d) of the Optional Protocol. However, the Committee notes that the

State Party has not explained to what extent the remedy of a civil action was available to

Ms. Černáková in practice, given that the conclusion of the expert opinion that she lacked

credibility constituted grounds for the authorities not to interview her and that she was not

provided with any procedural accommodation. Moreover, the Committee agrees with the

Committee against Torture that a civil remedy would not lead to establishing the

accountability of the perpetrators.13 A civil remedy would therefore not be commensurate

with the seriousness of the alleged offence and would be ineffective for the purpose of the

claims brought before the Committee.14 The Committee therefore considers that the absence

of a civil action does not preclude it from examining the author’s remaining claims under

article 2 (d) of the Optional Protocol.

8.5

The Committee notes the State Party’s submission that the communication is

insufficiently substantiated under article 2 (e) of the Optional Protocol. However, the

Committee considers that the author has sufficiently substantiated, for the purpose of

admissibility, that the State Party violated Ms. Černáková’s rights under articles 5, 13, 15 and

16 of the Convention by failing to interview and accommodate her in the context of the

investigation of the allegations of abuse. Concerning the author’s claim in her comments

dated 15 June 2020 of a violation of article 12 of the Convention regarding the expert opinion,

the Committee notes that the author did not make any such claim in her initial submission

and has not justified why she did not raise this claim earlier. The Committee therefore finds

the claim under article 12 inadmissible. As the Committee finds no further obstacles to

admissibility, it declares the author’s claims under articles 5, 13, 15 and 16 of the Convention

admissible and proceeds with its consideration of the merits.

Consideration of the merits

9.1

The Committee has considered the communication in the light of all the information

that it has received, in accordance with article 5 of the Optional Protocol and rule 73 (1) of

its rules of procedure.

9.2

The main question before the Committee is whether the failure to interview

Ms. Černáková in the context of the author’s allegations of ill-treatment against

Ms. Černáková at Harlekýn Social Care Home breached her rights under the Convention.

The Committee notes that the author complained, specifically, that Ms. Černáková had been

beaten with sticks by personnel members and other residents following instructions from staff,

slapped, restrained in a straitjacket, left to sleep on the floor, given the wrong psychiatric

11 Handke v. Germany (CRPD/C/32/D/82/2020), para. 8.2.

12 Černáková v. Slovakia (CAT/C/72/D/890/2018).

13 Ibid., para. 8.2.

14 Maya v. Nepal (CCPR/C/119/D/2245/2013), para. 11.6.

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medication, not treated in accordance with her health status and otherwise treated

inappropriately. The Committee notes that, on 20 March 2015, Topoľčany Police Department

dismissed the author’s complaint without having interviewed Ms. Černáková. Similarly, the

Committee notes that, on 26 January 2017, the investigator of Topoľčany Police Force

District discontinued a second investigation without having interviewed Ms. Černáková,

based on an expert opinion that concluded, inter alia, that she had “no general [or] specific

credibility” due to her “mental deficiency, emotional liability and behavioural disorders”.

The Committee notes that, on 15 June 2017, the Constitutional Court dismissed the author’s

constitutional complaint against the decisions of 26 January and 14 March 2017 as manifestly

ill-founded.

9.3

The Committee recalls that, under article 13 (1) of the Convention, States Parties shall

ensure effective access to justice for persons with disabilities on an equal basis with others,

including through the provision of procedural and age-appropriate accommodations, in order

to facilitate their effective role as direct and indirect participants, including as witnesses, in

all legal proceedings, including at investigative and other preliminary stages. The Committee

considers that, while States Parties are best placed to determine the specific form of

procedural arrangements that can enable persons with disabilities to exercise their legal

capacity, the relevant rights of the person concerned must be respected.15 In the present case,

the Committee considers that, by not interviewing Ms. Černáková and not providing any

procedural accommodation to her, the State Party’s authorities prevented her from

participating in the investigation of the ill-treatment of which she was the alleged victim and

thus did not ensure her effective access to justice on an equal basis with others, in violation

of her rights under article 13 of the Convention.

9.4

The Committee recalls that States Parties’ obligations under articles 15 and 16 of the

Convention include adopting measures to ensure that acts of ill-treatment or torture and

exploitation, violence or abuse are investigated and, where appropriate, perpetrators are

prosecuted, and that those subjected to such acts receive fair and adequate compensation,

reparation and rehabilitation.16 In the present case, the Committee considers that there is no

indication that the investigations into allegations of acts that would fall within the scope of

articles 15 and 16 of the Convention were effective and impartial, as no witnesses were called

other than the staff of Harlekýn Social Care Home and no criminal proceedings were initiated,

despite the identification of the staff allegedly responsible. The Committee therefore

considers that the investigations were ineffective, in violation of Ms. Černáková’s rights

under articles 15 (2) and 16 (5) of the Convention.

9.5

The Committee recalls that, under article 5 (1) and (3) of the Convention, States

Parties must ensure that all persons are equal before and under the law and are entitled

without any discrimination to the equal protection and equal benefit of the law, and must take

all appropriate steps to ensure that reasonable accommodation is provided to promote

equality and eliminate discrimination. The Committee also recalls that discrimination can

result from the discriminatory effect of a rule or measure that is not intended to discriminate,

but that disproportionately affects persons with disabilities. 17 In the present case, the

Committee notes that Ms. Černáková was not interviewed during the investigation

concerning the allegations of ill-treatment on the grounds of an expert opinion that was

confined to examining whether she could “correctly perceive, remember and reproduce” the

alleged events. The Committee notes that Ms. Černáková’s rights to participate in the

investigation and to access to justice were thus impaired on the sole grounds of an assessment

of her disability that had no regard to her requirements for procedural accommodation. The

Committee therefore considers that Ms. Černáková was discriminated against, in violation of

her rights under article 5 of the Convention.

9.6

In light of the foregoing, the Committee considers that the State Party has breached

Ms. Černáková’s rights under articles 5, 13, 15 (2) and 16 (5) of the Convention.

15 Noble v. Australia (CRPD/C/16/D/7/2012), para. 8.6.

16 A/72/55, paras. 39 and 41; and CRPD/C/3, paras. 17 (e) and 18 (d).

17 S.C. v. Brazil (CRPD/C/12/D/10/2013), para. 6.4.

CRPD/C/34/D/78/2020

GE.26-04637

9

C.

Conclusion and recommendations

10.

The Committee, acting under article 5 of the Optional Protocol, is of the view that the

State Party has failed to fulfil its obligations under articles 5, 13, 15 (2) and 16 (5) of the

Convention. The Committee therefore makes the following recommendations to the State

Party:

(a)

Concerning Ms. Černáková, the State Party is under an obligation:

(i)

To promptly, impartially and effectively investigate the allegations of

ill-treatment of Ms. Černáková, including by interviewing her and providing

her with procedural accommodation;

(ii)

To provide her with an effective remedy, including effective reparation,

adequate monetary compensation and an apology for the violations of her

rights under the Convention;

(iii)

To publish the present Views, translate them into the official language

of the State Party and circulate them widely in accessible formats so that they

are available to all sectors of the population;

(b)

In general, the State Party is under an obligation to take measures to prevent

similar violations in the future. In that regard, the Committee refers to the recommendations

contained in its concluding observations on the initial report of the State Party18 and requires

the State Party to take measures to ensure the effective role of persons with disabilities as

direct and indirect participants in all legal proceedings, including at investigative and other

preliminary stages, including by providing procedural accommodation.

11.

In accordance with article 5 of the Optional Protocol and rule 76 of the Committee’s

rules of procedure, the State Party should submit to the Committee, within six months, a

written response, including information on any action taken in the light of the present Views

and the recommendations of the Committee.

18 CRPD/C/SVK/CO/1.