National Preventive Mechanism
disabilities depends in large part on whether and how they are supported in
perceiving their environment, grasping it in the truest sense of the word and
exploring it themselves. When minors with disabilities are limited by structural
inadequacies and a lack of comprehensive accessibility, inadequate staffing
during day or night shifts, poorly adjusted aids or insufficient advancement
of mental or practical capabilities, the social development of these minors is
hampered in an inadmissible way.
Legal protection for
minors and adults
The use of measures that restrict freedom of mentally disabled or mentally ill
adults would also be inadmissible per se without a prior review of alternatives
and prompt reporting to the representatives of the residents. This is regulated
in the Nursing and Residential Homes Residence Act, which also enables a
review by a court. For children and adolescents this does not apply without
exception. An exemption was created for them in the Nursing and Residential
Homes Residence Act. As the Supreme Court has recently stated, the Nursing
and Residential Homes Residence Act is apparently not applicable to
institutions and facilities under the supervision of the competent authority
for children and youth welfare and protection. Ultimately, however, this
means that they currently do not enjoy the same legal protection as adults
in comparable situations.
Legal protection
can depend on
coincidences
But minors among themselves are also treated differently. Because the area
to which the Nursing and Residential Homes Residence Act applies is defined
as referring to the institution or facility, the kind of legal protection a child
enjoys in the event of the use of age-atypical measures restricting freedom
can depend on coincidences or purely internal organisational allocations. In
institutions and facilities supervised by the competent authority for children
and youth welfare and protection the legal protection proceedings of the
Nursing and Residential Homes Residence Act do not apply. Children in other
facilities that are subject to the supervision of the operator of facilities for
persons with disabilities can indeed take advantage of this legal protection.
Age-atypical restrictions of freedom represent interference with the right to
personal freedom. This right enjoys particular protection in Austria and is
constitutionally guaranteed. For a long time, there had been a legal grey
zone in the area of institutions and facilities for persons with disabilities
with regard to measures that restrict freedom and the protection of personal
freedom. It was therefore the goal of the Nursing and Residential Homes
Residence Act to eliminate this grey zone.
Differences in legal
protection not in
conformity with human
rights principles
122
For the NPM, this legal situation is not comprehensible, specifically, but
not exclusively from the human rights perspective and is also objectively
unjustified. From a human rights perspective, the protection of persons with
disabilities may not vary, depending on the facility in which the persons are
being cared for. In the opinion of the NPM, such a differentiation contradicts
the norms of the UN Convention on the Rights of the Child and of the UN
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