Last Updated on January 25, 2022 by LawEuro
Information Note on the Court’s case-law 259
February 2022
Negovanović and Others v. Serbia – 29907/16, 30022/16, 30322/16 et al.
Judgment 25.1.2022 [Section II]
Article 1 of Protocol No. 12
General prohibition of discrimination
Discriminatory denial to blind chess players of financial awards granted to sighted players as national sporting recognition for winning similar international accolades: violation
Facts – The four applicants are blind chess players and Serbian nationals who, between 1961 and 1992, won a number of medals for Yugoslavia, notably at the Blind Chess Olympiads, as part of the national team. They complained that they had been discriminated against by the Serbian authorities by being denied certain financial awards provided under the 2006 Sporting Achievements Recognition and Rewards Decree, i.e. a lifetime monthly cash benefit as well as a one-time cash payment, unlike all other athletes and chess players, including sighted chess players or other athletes or players with disabilities, who had won similar international accolades. Their discrimination claims were dismissed by the domestic courts.
Law – Article 1 of Protocol No. 12:
(a) Applicability – The domestic law, as interpreted by the national courts, provided that only chess players who had won medals at the Chess Olympiad, otherwise organised for sighted chess players only, were entitled to certain financial awards, thus effectively disqualifying all other chess players including those who, such as the applicants, had won their medals at the Blind Chess Olympiad. It follows that the Serbian authorities, when deciding to enact such legislation, had clearly exercised their discretionary power in such a way as to treat differently the sighted and the blind chess players despite them winning similar international accolades. Consequently, the applicants’ complaints fell under category (iii) of potential discrimination as envisaged by the Explanatory Report on Protocol No. 12.
(b) Merits –
(i) Whether there was a difference in treatment – The lifetime monthly cash benefit was to be paid to sighted chess players for winning medals in the Chess Olympiad but not to blind chess players for winning medals in the Blind Chess Olympiad, the former competition having been listed in the decree but the latter competition not having been specifically mentioned therein. The situation with the one-time cash payment, however, seemed less clear since Article 3 of the decree referred only to persons who had won medals for Serbia rather than both Serbia and Yugoslavia. The applicants had been thus at least partly treated differently based on a ground of distinction covered by Article 1 of Protocol No. 12, namely their disability.
(ii) Whether the two groups of persons were in comparable situations – The applicants, as blind chess players who had won their medals at the Blind Chess Olympiad, on the one hand, and the sighted chess players who had won their medals at the Chess Olympiad, on the other, had to be seen as two groups of persons engaging in the same activity, i.e. playing chess, and, furthermore, as two groups whose members had attained some of the highest international accolades. They had thus been in analogous or relevantly similar situations.
(iii) Whether there was an objective and reasonable justification – While it had been obviously legitimate for the Serbian authorities to focus on the highest sporting achievements and the most important competitions, it had not been shown why the undoubtedly high accolades that had been won by the applicants, as blind chess players, would have been less “popular” or “internationally significant” than similar medals that had been won by sighted chess players. Indeed, the International Braille Chess Association had informed the Serbian authorities, that blind chess players were, based on their results, “on the single official list of FIDE together with chess players without sight impairment” and had requested that they be treated “in accordance with the basic postulates of ethics and fair-play in sports”. In any event, it was inconceivable that the “prestige” of a game or a sport as such, including for example some of the most popular sports such as football, basketball or tennis, should depend merely on whether it was practised by persons with or without a disability. The decree itself actually placed the Olympics and the Paralympics on an equal footing and thus regarded the achievements of disabled sportsmen and sportswomen in the sports concerned as meriting equal recognition. Also, equal treatment of blind and sighted chess players for similar achievements, in Serbian legislation as well as in practice, could only have served to enhance the country’s reputation abroad and promote inclusiveness domestically. Lastly, of all the medal winners and champions over the years, namely a total of some 400 persons including sighted chess players, only blind chess players had been denied their national sporting recognition award. Adding the four applicants to this number, therefore, clearly could not have undermined the country’s financial stability, particularly since there had been no suggestion that winning a medal at the Blind Chess Olympiad was, generally speaking, an easily attainable achievement capable of giving rise to many future entitlements.
Accordingly, and notwithstanding the State’s margin of appreciation, there was no “objective and reasonable justification” for the differential treatment of the applicants merely on the basis of their disability, it being understood that the said margin was reduced considerably in this particular context.
Conclusion: violation (five votes to two)
Article 41: EUR 4,500 to each applicant in respect of non-pecuniary damage. As to pecuniary damage, the Government must pay each applicant the accrued and any future financial benefits and/or awards to which he would have been entitled had he been a sighted chess player who had won, for Yugoslavia, a relevant medal at the Chess Olympiad for sighted chess players, together with the applicable domestic statutory interest as regards the accrued benefits and/or awards only.
(See also Glor v. Switzerland, 13444/04, 30 April 2009, Legal Summary; Savez crkava “Riječ života” and Others v. Croatia, 7798/08, 9 December 2010, Legal Summary; Napotnik v. Romania, 33139/13, 20 October 2020, Legal Summary)
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