Last Updated on May 31, 2022 by LawEuro
Information Note on the Court’s case-law 262
May 2022
Arnar Helgi Lárusson v. Iceland – 23077/19
Judgment 31.5.2022 [Section III]
Article 14
Discrimination
No discrimination against wheelchair user unable to access two local public buildings, given other considerable measures to improve accessibility: no violation
Facts – The applicant is paralysed from the chest down and uses a wheelchair for mobility. Before the domestic courts, and together with an association of people with spinal injuries, he brought unsuccessful civil proceedings challenging a lack of wheelchair access in two buildings housing arts and cultural centres run by his municipality. The plaintiffs appealed up to the Supreme Court without success.
Law – Article 14 in conjunction with Article 8:
(a) Applicability
In the present case, the situation had to be distinguished from earlier Court case-law where it had found that the lack of wheelchair access had not fallen within the ambit of private life:
– Unlike in Botta v. Italy, the accessibility issue in the present case concerned buildings owned and/or operated by and located in the applicant’s own municipality;
– Unlike in Zehnalová and Zehna v. the Czech Republic (dec.), the applicant had identified a small, clearly defined number of buildings where access was lacking and had explained how the lack of access to each of those buildings had affected his life; and
– Unlike the situation in Glaisen v. Switzerland (dec.), the present case did not concern merely one of several similar, privately run cultural venues.
The first building was the municipality’s “main arts and cultural centre”, and it was not evident that the applicant could access similar cultural and social events and services at other venues in his municipality. Admittedly, the second building was primarily aimed at children and teenagers, but it was nevertheless a public building whose hall was rented out for activities and events, including those which could be attended by children. No other buildings in the municipality had been available which had had an equivalent purpose.
The applicant had thus clearly identified two particular buildings which were publicly owned and/or operated and which appeared to play an important role in local life in his municipality, which was home to fewer than 20,000 inhabitants. The lack of access to the first had hindered the applicant’s participation in a substantial part of the cultural activities that his community had to offer, and the lack of access to the second had hindered him from attending birthday parties and other social events with his children.
The Court was conscious of the importance of enabling people with disabilities to fully integrate into society and participate in the life of the community, which had been emphasised by the Council of Europe and led to significant developments in European and international standards. Without access to the physical environment and to other facilities and services open or provided to the public, people with disabilities would not have equal opportunities for participation in their respective societies.
Against that background, and in the light of the circumstances of the case, the matter at issue was liable to affect the applicant’s right to personal development and right to establish and develop relationships with other human beings and the outside world. Consequently, the matter fell within the ambit of “private life” within the meaning of Article 8. It followed that Article 14, taken together with Article 8, was applicable.
(b) Merits
In previous cases concerning the rights of people with disabilities, the Court, referring to the UN Convention on the Rights of Persons with Disabilities (“the CRPD”), had found that Article 14 had to be read in the light of the requirements of those texts regarding “reasonable accommodation” – understood as “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” – which people with disabilities were entitled to expect in order to ensure “the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2 of the CRPD). Such reasonable accommodation helps to correct factual inequalities which are unjustified and which therefore amount to discrimination. Those considerations applied equally to the participation of people with disabilities in social and cultural life. In that regard, Article 30 of the CRPD explicitly required States Parties to guarantee to people with disabilities the opportunity to take part on an equal basis with others in cultural life.
The present case had to be considered from the viewpoint of whether or not the national authorities had complied with their positive obligation to take appropriate measures to enable the applicant, whose mobility was impaired due to disability, to exercise his right to private life on an equal basis with others. For that assessment, and taking account of the facts of the case, the test to be applied was limited to examining whether the State had made “necessary and appropriate modifications and adjustments” to accommodate and facilitate persons with disabilities, like the applicant, which, at the same time, did not impose a “disproportionate or undue burden” on the State. The Court proceeded to assess whether the respondent State had fulfilled its duty to accommodate the applicant, as a person with disabilities, in order to correct factual inequalities, applying the above-outlined test.
The Court had not benefitted from a prior assessment by the national courts of the balancing of the competing interests and whether sufficient steps had been taken to accommodate the accessibility needs of people with disabilities, including the applicant. Nevertheless, taking account of the nature and limited scope of its assessment, and the State’s wide margin of appreciation, the Court was not convinced that the lack of access to the buildings in question had amounted to a discriminatory failure by the respondent State to take sufficient measures to correct factual inequalities in order to enable the applicant to exercise his right to private life on an equal basis with others.
In that regard, considerable efforts had been made to improve accessibility of public buildings and buildings with public functions in the municipality following a parliamentary resolution in 2011. In deciding on those improvements, the municipality had prioritised improving accessibility to educational and sports facilities, which was neither an arbitrary nor unreasonable strategy of prioritisation, also considering the emphasis which the Court had placed on access to education and educational facilities in its case-law. Further accessibility improvements which had since been made demonstrated a general commitment to work towards the gradual realisation of universal access in line with the relevant international materials. In the circumstances of the present case, imposing on the State a requirement to put in place further measures would have amounted to imposing a “disproportionate or undue burden” on it within the context of its positive obligations established by the Court’s case-law to reasonably accommodate the applicant.
The respondent State and municipality had therefore taken considerable measures to assess and address accessibility needs in public buildings, within the confines of the available budget and having regard to the cultural heritage protection of the buildings in question.
In the light of the above, and considering the measures already undertaken, the applicant had not been discriminated against in the enjoyment of his right to respect for private life.
Conclusion: no violation (six votes to one).
(See also Botta v. Italy, 21439/93, 24 February 1998, Legal Summary; Zehnalová and Zehnal v. the Czech Republic (dec.), 38621/97, 14 May 2002, Legal Summary; Glaisen v. Switzerland (dec.), 40477/13, 25 June 2019, Legal Summary)
Leave a Reply