Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
CASE OF ENVER ŞAHIN v. TURKEY
(Application no. 23065/12)
JUDGMENT
STRASBOURG
30 January 2018
FINAL
02/07/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Enver Şahin v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Robert Spano, President,
Julia Laffranque,
Işıl Karakaş,
Nebojša Vučinić,
Paul Lemmens,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Section Deputy Registrar,
Having deliberated in private on 19 December,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23065/12) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Enver Şahin (“the applicant”), on 14 March 2012.
2. The applicant was represented by Mr S. Elban, Mr H.K. Elban and Mr F. Erbek, lawyers practising in Antalya. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant alleged that he had been the victim of discriminatoryinterference with his right to respect of private life (Article 8 of the Convention read in conjunction with Article 14), and complained of a discriminatoryinfringement of his right to education (Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention).
4. On 5 March 2014 notice of the application was given to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1988 and lives in Diyarbakır.
6. In 2005, while he was a first-year mechanics student in the technical faculty ofFırat University (“the faculty”), the applicant was seriously injured in an accident which left his lower limbs paralysed. He had to suspend his studies until he had recovered sufficiently to return to university.
1. On 17 March 2007theapplicant requested the facultyto adapt the university premises in order to enable him to resume his studiesfor the 2007‑2008 academic year.
2. The facultyreplied to that request byletter of 25 May 2007. It pointed out that the facultybuilding had been designed and built with several floors in order to accommodate 3,000 studentsand that its architecture could not be adapted. It stated that the administration had been asked for leave to conduct redevelopment work on the doors to the building, but that that work could not be carried out in the short term. It added that the mechanics course required the applicant to participate inpractical workshops, considering that as things stood such participation would cause problems. The faculty concluded that if the applicant wished to continue his studies it would help him as far as possible.
3. On 16 August 2007theapplicant sent, through anotary, formal notice to the administrationof Fırat University and the facultydeaninviting them to carry out the redevelopment work requested. Relying on Article 42 of the Constitution, section 15 of Law no. 5378 on personswith disabilities and Article 2 ofProtocolNo. 1 to the Convention, he affirmed that it was the State’s duty to guarantee thecitizens’ right to education, in line with theprincipleof equal opportunities. He furtheralleged that thefaculty’s reply to his request (see paragraph 8 above) had been intended solely to induce him to abandon hisstudies.
4. The administration replied to that formal notice by letterof 10 September 2007. The latter stated that the redevelopment works mentioned should be considered in the light of compliance with the regulations on public property, which could take some time. Furthermore, any problemsencountered by the applicant inattending thetheoretical classes administered in a three-storey building could be resolved with the help of a companion.
The Administration pointed out that thepractical workshops were held on the ground floor of the building and posed no problems with regard toaccess, and that the applicant would consequently have no difficulty in attending the courses administered in the framework of those workshops. It explained that the only reason why the applicant’s participation in thepractical workshops had previously been described asproblematic (see paragraph 8 above) was that such workshops necessitated a considerable physical effort and that his particular situation required some thought regarding the type of assistance with which he could be provided. Furthermore, all the parties involved were anxious to help studentsindifficulty, and there wasno question of deterring the applicant from continuing his studies. Finally, the Administration pointed out that since, in its view, the budget allocated by the State was limited, the redevelopment work necessitated by the applicant’s situation was subject to unavoidable budgetary and timeconstraints.
5. On 15 November 2007 the applicant filed with the Elazığ Administrative Court an action for annulment of the university’s replies of 25 May and 10 September 2007 and to providecompensation forthe pecuniary and non-pecuniary damage which heclaimed he had sustained. He complained that the authorities had not removed the physical obstacles preventing him from exercising his right to education. He claimed 25,000 Turkishliras (TRY) in respect of non-pecuniary damage and TRY 30,000 in respect of pecuniary damage.
6. The Administration of Fırat Universityreplied in a defencememorial of 24 March 2008. That document stated that theuniversityhad not been responsible for theapplicant’s accident. It criticised the applicant for having opted forjudicial channels, and alleged that he was acting in bad faith, adding, in that connection, that he had been informed that he would be provided with support should hedecide to return to university. Furthermore, the relevant agencies had been contacted with a view to redeveloping the facultybuilding and a proposal had been made to include the works in an investmentprogramme complying with the relevant regulations governing public property. The Administration further argued that it had offered the applicant the services of an assistant, but that he had not submitted any request for such help. The office added thataccessto the workshops posed no problemsfor persons with disabilities, but that the courses administered at the workshops demanded aphysical effort from participants. Lastly, it pointed out that the applicant had never been barred from any course.
7. The applicant replied, refuting the arguments put forward by the Administration. He submitted that his right to education was guaranteed by domestic law and by Article 2 of Protocol No. 1 to the Convention, and that it was incumbent on the domestic authorities to take steps to enable him to exercise that right, with respect for the principle of equal opportunities. Moreover, he argued that the redevelopment work requested was such as should already have been conducted in any case, in line with the requirements of section 1bisof Law no. 3194 on urban planning (see paragraph 23 above). Furthermore, he considered that the authorities’offerof an assistantillustrated their ignorance of hispersonalsituation and the implications of that situation. He added that it would be degrading for him to be placed in a situation ofdependenceon a third person because of his disability, citing theexampleof how the constant presenceand assistance of a third person would invade his privacy. He also pointed out that the fact of being carried upstairs by another individual comprised a definiterisk of his falling.
8. On 13 October 2008 thefacultyterminated its contracts with a number of students, including the applicant, on the grounds that they had not re-registered at the start of two successiveacademic years.
9. 2 November 2009 saw the enactment of Legislative Decree no. 2009/15546, published in theOfficialGazette(“theOG”) on 13 November 2009, closing down certain categoriesof institutionsof higher education, including technical faculties, one of which was the technicalfacultyof Fırat University, which wasreplaced by a newfacultyoftechnology. Under the legislativedecreestudentswho were already registered could continue their studiesin the newfaculties.
10. On 9 April 2010 the ElazığAdministrative Court dismissed the applicant’s appeal. In the reasoning of its judgment it stated, in particular, that the buildings in question had been erected inaccordance with the regulationsinforcein 1988. The court took the view that although it was incumbent on the authorities toapply thetechnical guidelines set out in thelegislationsubsequently enacted for persons with disabilities,it could not be contended that the respondent authority had not followed those guidelines during the construction of a building erected in 1988, before the guidelines had come into force. Lastly, thejudgment mentioned that the authorities had informed the complainantthat architectural measures would beadopted, depending on the available budget,and that a person would be appointed to assist him in attending the courses.
11. The applicant lodged an appeal on points of law with the Supreme Administrative Court against that judgment.
12. On 18 January 2011 the Supreme Administrative Court delivered a judgmentdismissing that appeal on points of law and upholding the first-instancejudgment as being in conformity with the procedure and laws.
13. The applicant lodged an application for rectification of that judgment with the Supreme Administrative Court, complaining of an infringement of his right to education and the equalityprinciple.
14. On 28 September 2011 the Supreme Administrative Court dismissed the applicant’s application, holding that there were no grounds for rectification.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Relevant domestic law
15. The domestic law relevant to the present case was partly described in thejudgmentÇam v. Turkey (no. 51500/08, §§ 34-36, 23 February 2016).
16. Furthermore, section 3 (f) of Law no. 5378 on persons with disabilities of 1 July 2005 (“Law no. 5378”), published in the OG on 7 July 2005, definesaccessibilityas follows:
“(f) Accessibility: secure andindependentaccessto and use of buildings, outside areas, transport and information services and information and communication technologies.”[1]
Article 2 (provisional) of that Law as inforce at the material time read as follows:
“Existingofficial buildings belonging to public bodies and institutions, all [existing] roads and highways, pavements, pedestrian crossings, open spaces and parks, sportsareas and othersimilarsocial andculturalinfrastructures, as well as all constructions built by natural or legal persons providing public services shall be made compatible with the accessibilityof‘invalids’[2]‘within seven years’[3] of the entry into force of [thepresent]law”
17. On 30 May 1997 anadditionalsection was added to Law no. 3194 onUrban Planning of 3 May 1985, published in the OG on 9 May 1985. That sectionprovides for an obligation to comply with the standards of the TurkishStandards Institutein urban planning projects, in urban and socialconstruction areas and intechnicalinfrastructures in order to ensure that thephysicalenvironment is accessible and adapted to persons with disabilities.
18. Law no. 6111 of 13 February 2011, published in the OG on 25 February 2011, added section 58 (provisional) to Law no. 2547 on Higher Education of 4 November 1981 (the so-called“studentamnesty law”), published in the OG on 6 November 1981. That sectionprovides, in particular, that certainstudentswho, before the entry into force of the section, had terminated their relations with their institutionsof higher education can:
– resume their studiesduring the 2011‑2012 academic year, subject to applying to do so within five months of the entry into force of the said section;
– begin attending courses at the spring term of the 2010‑2011 academic year, subject to applying to do so within ten days of the entry into force of that section and provided that that application isaccepted by theinstitutionin question.
Section 11 of Law no. 6353 of 4 July 2012, published in the OG on 12 July 2012, added section63 (provisional)to Law no. 2547, providing as follows:
“Anyone who is ineligible under section 58 (provisional) [of Law no. 2547] because he or she has failed to lodge an application within the prescribed time-limit … may, as from the entry into force of that section,begin [a course of study] during the subsequent [academic] year pursuant to theprinciplesset out in section 58 (provisional), by applying to theinstitutionof higher education with which they have broken offrelations.”
B. International law
19. The texts of international law relevant to the instant case are described in the Çam judgment (cited above, §§ 37-38 – see, additionally, Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002‑V; Mółka v. Poland (dec.), no56550/00, ECHR 2006-IV; andFarcaş v. Romania(dec.), no. 2596/04, §§ §§ 68-70, 14 September 2010).
Regard should also be had to the following passages from theUnited Nations Convention on the Rights of People with Disabilities (“CRPD”), adopted on 13 December 2006 by the United Nations GeneralAssemblyand signed on 30 March 2007, and thenratified by Turkeyon 28 September 2009.
Article 2
“Definitions
For the purposes of the present Convention:
…
‘Discrimination on the basis of disability’ means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;
‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms
…”
Article 3
“General principles
The principles of the present Convention shall be:
(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
…”
Article 9
“Accessibility
1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:
(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
(b) Information, communications and other services, including electronic services and emergency services.
2. States Parties shall also take appropriate measures:
…
(e) To provide forms of live assistance and intermediaries, including guides, readers and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;
(f) To promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;
…”
Article 20
“Personalmobility
States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by:
(a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost;
(b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost;
(c) Providing training in mobility skills to persons with disabilities and to specialist staff working with persons with disabilities;
(d) Encouraging entities that produce mobility aids, devices and assistive technologies to take into account all aspects of mobility for persons with disabilities.”
Article 24
“Education
1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:
(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity;
…
5. States Parties shall ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities
…”
20. Referenceshould also be made to Article 13 of the International Covenant on Economic, Social andCulturalRights, adopted by the United Nations on 19 December 1966 andratified by Turkeyon 23 September 2003. That provision lays down that the States Parties must recognise the right of everyone to educationand, with a view to achieving the full realisation of that right, that higher education must be made equally accessible to all, on the basis of capacity, by every appropriate means.
21. Within theCouncilof Europe, Recommendation No. R(98)3 onaccessto higher education, adopted on 17 March 1998 by theCommittee des Ministers, acknowledges that higher education has a key role to play in the promotion of human rights and fundamental freedoms.
Furthermore, in itsRecommendationNo. R(92)6 of 9 April 1992 on acoherent policy for persons with disabilities, theCommittee ofMinisters invited member States to“guarantee the right of people with disabilities to an independent life and full integration into society”and to“recognise society’s duty to make this possible”, inorder to give persons with disabilities proper “equality ofopportunity”with others. Public authorityaction must be geared, inter alia, to give persons with disabilities“as much mobility as possible, and access to buildings and means of transport”, and to enable them to“play a full role in society” and “take part in economic, social, leisure, recreational and cultural activities”.
For its part, theParliamentaryAssembly of theCouncilof Europe dealt with these matters in itsRecommendationNo. 1185 (1992) of 7 May 1992 on rehabilitation policiesfor the disabled. That textemphasised that“society has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives”. To that end, Governmentsand the competentauthoritieswere called upon to“strive for and encourage genuine active participation by disabled people in … the community and society”and accordingly, to guarantee “ease of access to buildings”.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 2 OF PROTOCOL No. 1 TO THE CONVENTION AND OF ARTICLE 14 OF THE CONVENTION
A. Subject matter of the dispute
22. The applicant complained of a discriminatory infringement of his right to education. He submitted that in order to be able to continue his university studiesat thefaculty,redevelopment work had to be carried out in the faculty building. He alleged that the rejection of his request for works had forced him to abandon his studies. Thus he complained that the State had failed to take thepositive action which he claimed was incumbenton it and would have enabled him to continue his university course.
He relied on Article 2 ofProtocolNo. 1 to the Convention read alone or in conjunction with Article 14 of the Convention, which provide:
Article 2 ofProtocolNo. 1 to the Convention
“No person shall be denied the right to education. …”
Article 14 of the Convention
“The enjoyment of the rights and freedoms set for in [this] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinions,nationalorsocialorigin, association with a nationalminority, property, birth or other status.”
23. The Government contested that argument.
24. TheCourt observes that the applicant’s allegationofdiscriminatorytreatmenton grounds of his locomotor disability is central to the complaint before it. In that connection it reiterates from the outset that Article 14 of the Convention only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (regardingthe principles, see, for example, Case “relating to certain aspects of the laws on the use of languages in education in Belgium”(merits), 23 July 1968, § 9, Series A no. 6;Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 39 et 40, ECHR 2005‑X; E.B. v. France [GC], no. 43546/02, § 48, 22 January 2008; andSejdić and Finci v. Bosnia-Herzegovina[GC], nos. 27996/06 and 34836/06, § 39, ECHR 2009).
25. That being the case, theCourthasalready had occasion to point out thatin a democratic society the right to education is indispensable to the furtherance of human rights and plays a fundamental role(see Velyo Velev v. Bulgaria, no. 16032/07, § 33, ECHR 2014 (extracts), andÇam, cited above, § 52). Article 2 ofProtocolNo. 1 to the Convention applies to higher education and, in thatcontext, require any State which has set up institutions of higher education to ensure thatthey are effectively accessible (see Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 136 and 137, ECHR 2005 XI). Inother words, access to any institution of higher education existing at a given time is an inherent part of the right set out in the first sentence of Article 2 of Protocol No. 1 (see, inter alia, Mürsel Eren v. Turkey, no. 60856/00, § 41, ECHR 2006‑II, andİrfan Temel and Others v. Turkey, no. 36458/02, § 39, 3 March 2009).
Inthe present case, since the applicant’salleged inability to benefit from his right to university educationconcerned anexistingfaculty, which had become inaccessible to the applicant following an accident which had left him with a locomotor disability, it can only beconcluded that the complaintin question falls within the ambit of Article 2 ofProtocolNo. 1 and that therefore Article 14 of the Convention isapplicable.
B. Admissibility
1. The Government’s submissions
26. The Governmentpointed out that Law no. 5378 had imposed an eight-year time-limit (see paragraph 22 above) on rendering public buildings, roads, pavements, pedestrian crossings, open spaces and parks, sports areas and other similar social and cultural infrastructures, as well as all buildings providing public services, accessible to persons with disabilities. They explained that during thisprocedure the authorities in charge of the universityin question had stated that the applicant could continue hisstudies. Ever since 2010 the buildings of thefacultyoftechnologyset up under LegislativeDecree no. 2009/15546 of 2 November 2009 (see paragraph 15 above), in which the engineering classes were now being held, had beeninconformitywith the provisionson access for studentswith disabilities.
27. The Governmentadded that the applicant had neither reregistered at the faculty nor had recourse to the StudentAmnesty Law (see paragraph 24 above) in order toreturn to theuniversityand resume hisstudies. They affirmed that he could have continued his studies if he had taken up the opportunities offered to reregister. The regulations set out in Law no.6353 (ibid.) did notlay down any time-limit, and there was currently no obstacle to the resumption of his studies, provided that he submitted the relevant request. In that regard the Government submitted that the requisite redevelopment work had already been carried out in the new faculty buildings.
28. Therefore, the Government took the view that, having regardto the redevelopment work carried out and the opportunitiesoffered by the StudentAmnesty Law, the applicant had lost his victimstatus under Article 34 of the Convention and his application had to berejected.
2. The applicant’s submissions
29. The applicant replied that the university authorities’ dismissal of his request for measures geared to enabling him, as a person with a disability, to continue his studies had amounted to a violation of his right to education, as well as of his right to personal autonomy and self-fulfilment – which he described as aspects of his private life. He submitted that that violation had, furthermore, persisted until the authorities had taken the requisite action in the institution in question to remove the obstacles to his access to education, that is to say, as contended by the Government, until 2010-2011. The applicant considered, in that connection, that from the 2007-2008 academic year until the 2010‑2011 academic year he had found it physically impossible to resume hisstudiesbecause he had had no means of accessing the rooms in which the classes were being held.
30. In the applicant’s view, even though he could have had recourse to the StudentAmnesty Law in order to reregister with the facultyas from the 2010‑2011 academic year – when the physical accessibilityof the classrooms would have been guaranteed– the damage which he claimed to have suffered during theperiodwhen, in his view, he had been deprived of education had not been redressed, and indeed the respondent Governmenthad made noeffort to redress it. The applicant added that the dismissal of his appeals by the administrative courts was a fact which could not be overlooked. He took the view that, in the final analysis, the national authorities had neither acknowledged nor provided redress for the violations of which he was complaining.
3. The Court’s assessment
31. Inthe instant case, theCourt observesthat on 17 March 2007 the applicant lodged with the relevant university authorities a request for redevelopment work on their premisesin order to ensure hisaccessto them (see paragraph 7 above). When the authorities replied that such work could not be carried out in the short term, theapplicant applied, in vain, to the administrative courts (see paragraphs 11 to 20 above).
It transpires from the case file and the Government’sobservations (see paragraphs 15 and 33 above) that thefacultyin which the applicant had been registered had been closed and replaced by afacultyof technology, whose buildings are reportedly being tailored to the needs of persons with disabilities. Moreover, according to theGovernment, the applicant is eligible for the provisionsof the StudentAmnesty Law enabling him to request reregistration at the university at any time (seeparagraphs 34 and 35 above), which is not disputed by the applicant (see paragraph 37 above).
32. In order todetermine whether the applicant can continue to claim to be thevictimof thealleged violations, account should be taken of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (see Tănase v. Moldova [GC], no. 7/08, § 105, ECHR 2010). Inthe present case, the redevelopment work carried out to accommodate persons with disabilities, as mentioned by theGovernment, is surely relevant here. However, the fact is that those improvements were not made until 2010 (see paragraph 33 above), apparently owing to budgetary and/or administrative constraints which had prevailed up to that date (see paragraphs 8 and 10 above).
The applicant can thereforelegitimately claim to be thevictimof adiscriminatory infringement of his right to education during theperiodprior to the said work, as, in the circumstances of the present case, the subsequent setting up of a new faculty accessible to persons with disabilities cannot be interpreted as recognitionof and redress for the allegedviolation vis-à-vis the 2007-2008, 2008‑2009 and 2009-2010 academic years (regarding theprinciples, see, forexample, Eckle v. Germany, 15 July 1982, §§ 69 et seq., Series A no. 51;Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999‑VI; and Gäfgen v.Germany[GC], no. 22978/05, §§ 115 and 116, ECHR 2010).
The same applies to the university registration facilities offered to the applicant, inasmuch as thematerialconditions prevailing in the building in question remained the same throughout the periodinquestion.
33. The Government’spreliminary objection must therefore berejected.
34. Noting, moreover, that the applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds, the Court declares it admissible.
C. Merits
1. The applicant’s submissions
35. Referring to the case-law of the Court (see Leyla Şahin, cited above,§ 137), the applicant submitted that the right to higher education fell within the scope of Article 2 ofProtocol no. 1 to the Convention.
36. He explained that in the present case the impugned discrimination arose from the failure to take account of his physical disability vis-à-vis hisaccessto education. He argued that he had been treated in the same way as healthy students. He affirmed that under theCourt’s relevant case-law discrimination couldoriginate from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006‑VIII).
37. Citing Article 10 of the Constitution, he submitted that positive discrimination towards persons with disabilities was not contrary to the prohibitionof discrimination. He added that under section 15 of Law no. 5378 the right toeducationof persons with disabilities could not be impededunder any circumstances, and complained that the domestic authoritieshad not acted in conformity with that provision.
38. Moreover, theapplicant rejected theGovernment’s argument concerning the time required to carry out the redevelopment work in order to implement the relevant legislativeprovisionsvis-à-vis the facultybuildings (see paragraph 33 above). He submitted that that argument could not be used tojustify the attitude of which he claimed to have been thevictim. He argued that in that context the legitimate aim pursued was disproportionate to the practical situation.
39. As regards the time-limit for complying with the requirement to bring existingbuildings into conformity, he pointed out that that limit had at first been seven years and then, in 2012, had been increased to eight years following a legislative amendment. Lastly, in 2014, following a further legislative amendment, an additional two-year period was granted for institutions which had not yet carried out the requisite work. The applicantsubmitted that in view of the aforementioned changes, he had been unable to rely on the fact that the law was final, especially as the public authorities showed insufficient awareness of the issues involved – as allegedly shown by the PrimeMinister’scirculars.
40. The applicant added that the only valid argument which theGovernmentcould advance was the margin ofappreciationavailable to States in enabling persons with disabilities tointegrate intosociety, and thatthat meant adapting thephysicalenvironmentwithin thelimitsofsocietal capacities. He submitted that the State’s margin ofappreciationintheeducational spherecould not be interpreted as broadly as the nationalauthoritieshad done in the present case.
41. Moreover, the applicant maintained that the redevelopment work which he had requested did not fit into a categoryliableto place an excessive burden on the university’s budget: the work involved installing anaccessramp on the ground floor of the building, adopting administrativemeasures to ensure that his courses could be administered on the ground floor or, failing that, installing a lift to the upper floors, and, lastly, installing toilets for persons with disabilities. The applicant estimated the costof that redevelopment work at some TRY 60,000 (approximately 14,620 euros (EUR)), whichsum he considered eminently affordable for the authorities. He explained that the works would certainly be useful not only for himself but also for other personswith disabilities in the future. He held that the refusal to carry out the work had amounted to an unfair anddisproportionateinterferencewith his right to education.
2. The Government’s submissions
42. Referring to their previous submissions (see paragraph 33 above), the Government began by supplying factual information concerning the current situation of the buildings erected in 2009 for the new faculty of technology (see paragraph 15 above). They pointed out that following alterations to the ground floors of the buildings, new classrooms and laboratories had been constructed and new departmentsorganised to enable students with disabilities to attend the courses. In that way any disabled student who was registered for a given course could now attend classes on the ground floor and, where necessary, in the classrooms of the different departments, which were readily accessible to persons with disabilities. Moreover, most of the workshops andlaboratorieswere on the ground floor. The Governmentenclosed with its observations a CD containingphotographs andvideorecordings of ground-floor classrooms and toilets for persons with disabilities, in order to show that the premisesin question were easily accessible to studentswith disabilities.
43. Furthermore, theGovernmentdenied any infringement of the applicant’s right to education, reiterating that that it was the applicant who had failed to re-register at the university (see paragraph 34 above). They reiterated thefacilitiesprovided by law in that connection (see paragraph 24 above), and emphasised once again that the applicant could have continued his studies, and in fact still could continue them, provided that he applied to do so, which the applicant had so far failed to do.
44. The Governmentacknowledged that the ability of persons with disabilities tobenefit from the services of public institutions and bodies on an equal footing with other persons was afundamentalhuman right and that disabled persons should have guaranteed access to public places so that they could live their day-to-day lives without the help of third persons. They submitted that Turkeyhad many laws and statutorytexts, including the Constitution, guaranteeingfull and effective participation insociety for persons with disabilities, on a non-discriminatory basis.
45. TheGovernmentfurther stated thataccessibilitywas one of theprinciplesunderpinning the United Nations Convention on the Rights of Persons with Disabilities, as ratified by the Turkish GrandNational Assemblyon 3 December 2008, of which theyquoted Article 9 § 1 (see paragraph 25 above). By the same token, referring to the provisionsof Law no. 3194 on Urban Planning (see paragraph 23 above), they affirmed that the institutions and authorities, which had a duty and responsibilityvis-à-vis thebuilt environment, complied with theaccessibility requirement. Therefore, according to the Government, all institutions and authorities were required to carry out the necessary redevelopment work, in line with the relevant standards of the Turkish Standards Institute, in order to renderbuildings, open spaces (roads, car parks, pedestrian areas, parks and pavements), transport and communications accessible.
46. The Governmentfurthercited the provisionsof Law no. 5378 (see paragraph 22 above) concerning theaccessibilityof public buildings and spaces for persons with disabilities. They explained that the redevelopment work required forsuch accessibilityhad to be ordered within eight years of the entry into force of the Law, with the possibilityof an additional maximum period of two years. They added that the Law laid down an administrative fine for failure to carry out the requisite redevelopment work within the legal time-limits.
47. The Governmentalso pointed out thatregulations on the supervision and inspectionofaccessibility had come into force. In thatcontext, inspections had been carried out and administrative fines imposed onpersonsand entities havingfailed in their obligations.
48. Moreover, theGovernmentsubmitted that Turkeyhad been endeavouring, and was continuing to endeavour, to take the requisite action to implement Law no. 5378 in order effectively to ensure the rights of persons with disabilities. They argued that the action to be taken within the time-limits laid down in the Law and the supervision of that actiontook time and entailedsignificantexpenditure.
49. Furthermore, in the presentcase the redevelopment work needed on the buildings likely to be used by the applicant incontinuing his studies had been carried out pursuant to domestic law. The Government wereconvinced that thanks to thephysical alterations made by the authorities and the opportunitiesprovided under the Student Amnesty Law there was no longer any obstacle to the applicant’s continuation of hisstudies.
50. Finally, theGovernment pointed out that there was nospecific legislation onaccessibility to university premisesfor persons with disabilities. Nor were there any provisionsspecific toFırat University, because since its premises had the status of public buildings they were governed by Law no. 5378.
51. Relying on the legislative provisions relating to persons with disabilities and the redevelopment work which the authorities had performed, theGovernment invited theCourtto find that there had been no violation of Article 14 of the Convention read in conjunction with Article 2 ofProtocol No. 1 to the Convention.
3. The Court’s assessment
(a) General principles
52. TheCourt reiterates thatininterpreting andapplying Article 2 ofProtocolNo. 1 it must bear in mind that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others, decisioncited above, § 42, andAustin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 54, ECHR 2012). Article 2 of Protocol No. 1 must therefore be read in the light of Article 8 of the Convention, which safeguards the right of everyone to respect for private and family life, inter alia(see Catan and Others v. theRepublic of Moldova andRussia [GC], nos. 43370/04 and 2 others, §§ 136 and 143,ECHR 2012 (extracts)).
53. In the samecontext, account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties. The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, and therefore the provisions on the right to education set out in such instruments as the European Social Charter and the United Nations Convention on the Rights of Persons with Disabilities should be taken into consideration (see Timishev v. Russia, nos. 55762/00 and 55974/00, § 64, ECHR 2005‑XII;Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, § 136, ECHR 2012; and Çam, cited above, § 53).
54. As regards Article 14 of the Convention, theCourt reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations, and thata difference oftreatmentis devoid of any“objective and reasonable justification” where it does notpursue a “legitimate aim” orthere is no“reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Stec and Others, decisioncited above, § 51; Zarb Adami, cited above, § 72;Sejdić and Finci, cited above, § 42; andÇam, cited above, § 54). However, Article 14 of the Convention does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (see, inter alia, D.H. and Others v. the CzechRepublic[GC], no. 57325/00, § 175, ECHR 2007‑IV). Statesenjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Vallianatos and Others v. Greece[GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013), and a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006‑VI).
55. Also under Article 14 of the Convention,theCourtmust have regard to the changing conditions of international and European law and respond, for example, to any emerging consensus as to the standards to be achieved. In that connection, the Court notes the importance of the fundamental principles of universality and non-discrimination in the exercise of the right to education, which are enshrined in many international texts. It further emphasises that those international instruments have recognised inclusive education as the most appropriate means of guaranteeing the aforementioned fundamental principles, as such education is geared to promoting equal opportunities for all, includingpersons with disabilities (see Çam, cited above, § 64, and thereferencestherein). Inclusive educationindubitably forms part of the States’ international responsibilityin this sphere.
b) Application of those principles to the present case
I. Establishing the framework of the assessment
56. The Court notes from the outsetthe Government’semphasis on the redevelopment work completed in 2010 (see paragraphs 49, 53 and 54 to 58 above), as well as on the appropriateness of the domesticlegislationwhich statesaccessto public places by persons with disabilities to be a fundamental right (see paragraph 51 above).
In thepresentcase, however, there is no need to assess the current situation in Turkey as regards the accessibilityof educational premises for persons with disabilities, since theCourthas already concluded (see paragraph 39 above) that such developments, however positive, are not such as to redress the violations which had allegedly occurred prior to 2010 (see, mutatis mutandis,Christian Democratic People’s Partyv. Moldova, no. 28793/02, § 78, ECHR 2006‑II;Norbert Sikorski v. Poland, no. 17599/05, § 157, 22October 2009; and V.C. v. Slovakia, no. 18968/07, § 153, ECHR 2011). Nor is the existence of legislation which is, a priori, conducive to protecting the rights of persons with disabilities of any relevance, because the important question in this case is whether Turkey effectively honoured its obligations under Article 14 Convention read in conjunction with Article 2 of Protocol No. 1 to the Convention with respect to the applicant.
Accordingly, theCourt’s task is to assess the diligence of the university authorities, and later of the courts’, reaction to the situation brought to their attention.
ii. Thestance taken by the university authorities
57. Inthe instant case, in explaining to Mr Şahin that the adjustments he sought (see paragraph 48 above) could not be carried out in the short term, the university authorities – like the Government (see paragraphs 53 and 58 above) – had cited first and foremost a lack of financial resources to be made available at short notice for that purpose (see paragraphs 8 and 10 above).
TheCourt accepts that, as regards the matter of providing persons with disabilities with adequateaccess to educational institutions, the national authorities have amargin of appreciation and are bestplaced to assess thatmargin depending on the fundsavailable (see, mutatis mutandis, O’Reilly and Others v. Ireland (dec.), no. 54725/00, 28 February 2002; Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003;Mółka, decision cited above; and Ponomaryoponovi, cited above, § 56).
58. Nonetheless, theCourtcannot accepttheshelving of the question of theaccessibilityof thefacultypremises for the applicant pending the availability of all thefundsrequired to complete all the major development work laid down in legislation.
What is at stake here is the principlethat where theexecutionof a commitment made under the Convention calls for positivemeasures from the State, the latter must not merely remain passive (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31).
59. In that connection,noting that the Convention is intended to safeguard concreteandeffective rights, theCourt reiterates that in the contextof thepresent case it must take account of developments in international and Europeanlaw andrespond, forexample, to any consensusemerging at those levels as to the standards to be achieved in the sphere concerned by the present case (see paragraphs 60 and 62 above).
60. TheCourtthereforeagrees with the Government (see paragraph 52 above)that Article 14 of the Convention must indeed be read in the light of the requirements of the aforementionedtexts, particularly the CRPD,with respect to the“reasonable accommodation – necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case” – which persons with disabilities are entitled to expect in order to secure their“enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2 CRPD – see paragraph 25 above). Such accommodation is geared to correctingfactualinequalities(see paragraph 61 above), and discrimination on grounds of disability“includes all forms of discrimination, including denial of reasonable accommodation” (see paragraph 25 above; and see, mutatis mutandis,Çam, cited above, §§ 65 and 67, andŞanlısoy v. Turkey (dec.), no.77023/12, § 60, 8 November 2016).
61. Clearly, it is not the Court’s task todefinethe “reasonable accommodation” – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities; the national authorities are much better placed than it to do so (see, forexample, Çam, cited above, § 66).
It is, however, important that those authorities take great care with thechoices they make in this sphere, in view of the impact of those choices on persons with disabilities, whose particularvulnerabilitycannot be ignored.
62. Coming back to thefactsof the case, the Court notes that thefacultydid not reject outright (cf.Çam, cited above, § 58) the applicant’s requests(see paragraphs 8, 10 and 12 above). In that regard, theCourtwill not dwell on the abstractpromise of assistance which thefacultyclaimed to be able to provide to the applicant, as far as possible, or on the expression of concern about thedemanding nature of the courses administered in the workshops; the statements comprise no practical,assessable proposal.
There thus remains the offer of support for the applicant (see paragraph 10 above). Although theGovernmentdid not provide details on the exact purpose andnature of the support to be provided, it seems obvious that it could only refer to helping the applicant, a paraplegic, to move around the three-storeyfacultybuilding.
63. In that regard, theCourt reiterates thatthe abilityofpersonswith disabilities to live autonomously with a fully-developed sense ofdignityand self-respect is of cardinal importance and is centralto the CRPD (Articles 3 (a), 9 § 1, 20 in limineand 24 § 1 (a) – paragraph 25 above), and is also one of theconsiderationshighlighted in therecommendationsadopted by the Councilof Europe. Similarly, theCourtitself has ruled thatthe very essence of the Convention is respect for human dignity and human freedom, which necessarily includes a person’s freedom to make his or her ownchoices(see Pretty, cited above, §§ 61 and 65;Mółka, decisioncited above; andMcDonald, cited above, § 47).
64. It is true that the instruments of international law recognise the provision offormsofhuman aid as onemeasure to ensure the personalmobility of persons with disabilities and tofacilitateaccessto buildings (Articles 9 § 2 (e) and 20 (b) CRPD – see paragraph 25 above). However, the solution offered by the administration does not fit into this framework because there is nothing in the case-file toconvincetheCourtthat the support in question was offered after a genuine assessment of the applicant’s needs andsincereconsideration of itspotentialeffects on hissecurity, dignityandautonomy.
65. Although the applicant has not in fact suffered any such effects, nonetheless, given that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 of the Convention (see Pretty, cited above; Mółka, decisioncited above; andMcDonald, cited above, ibid.) – which is akin to Article 2 ofProtocolNo. 1 (see paragraph 59 above) – theCourt observes that such ameasure, that is to say theofferof assistance to be provided by a support person, which was proposed by thefacultywithout any individualisedassessment of the applicant’s actual situation could not have been deemed reasonable under Article 8 because it disregarded the applicant’s need to live as independently and autonomously as possible.
iii. The judicial response in the present case
66. It was precisely the combination of all these aspects which the applicant had prayed in aid, while also relying on Article 2 ofProtocol No. 1 (see paragraph 13 above), before the ElazığAdministrative Court, which had thus had to adjudicatesubstantially the same complaints as those brought before the Court. Pursuant to the principleofsubsidiarity, it had been primarily incumbent on that court to enforce the rightsinissue, verifying, in particular, whether the applicant’seducational needs and the authorities’ limitedcapacityfor meeting them had been weighed against each other, that is to say whether afair balance had been struck between the competing interests of the individual and of the community as a whole (see, among many other authorities, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 98, ECHR 2003-VIII:Vučković and Others v. Serbia (preliminary objection) [GC], nos.17153/11 and 29 others, §§ 70-72, 25 March 2014; andPentikäinen v. Finland[GC], no. 11882/10, § 114, ECHR 2015).
67. However, the9 April 2010 judgmentof the Elazığ Administrative Court (see paragraph 16 above) is silent on those aspects. Essentially, the administrative judges, while vaguely acknowledging that the authorities ought to have applied the guidelines onpersons with disabilities, quite simply exempted the respondentfacultyfrom its duty to cater for the applicant, on the sole grounds that its building had been erected in 1988, before theguidelines had come into force.
For the remainder, relying on the assumption that “architectural measures would be adopted depending on the available budget” – even though there had been no concrete proposal to that effect (see paragraphs 8 and 69 above) – the court considered it sufficient to point out that a person would be appointed to assist the applicant, without explaining how such a solution would prove adequate. In so doing the court also refrained (see paragraph 71 in fineabove) from seeking toidentify the applicant’s real needsand the ways and means of meeting them, with a view to enabling Mr Enver Şahin to resume hisstudiesunderconditions as similar as possible to those provided for able-bodied students, without imposing a disproportionate or undue burdenon the authorities.
TheCourt takes the view that that response lacked any considerationof the fair balance to be struck between the applicant’sinterest in exercising his rights secured under Article 14 of the Convention read in conjunction with Article 2 ofProtocolNo. 1 to the Convention and any other competinginterests to which theElazığ Administrative Court might have been giving precedence.
iv. Conclusions of the Court
68. Having regard to all the foregoing considerations, the Courtconcludes that in the present case the Government have failed todemonstrate that the national authorities, including, in particular, the academic and judicialauthorities, reacted with the requisite diligence to ensure that the applicant could continue to exercise his right to education on an equal footing with other students and, consequently, to strike a fair balance between the competing interests at stake.
Accordingly, there has been a violation of Article 14 of the Convention read in conjunction with Article 2 ofProtocolNo. 1 to the Convention.
69. Having regard to that finding, the Court considers it unnecessary to assess separately the complaint under Article 2 of Protocol No. 1 to the Convention taken alone (see, mutatis mutandis, Darby v. Sweden, 23 October 1990, § 35, Series A no.187; Pla and Puncernau v. Andorra, no. 69498/01, § 64, ECHR 2004‑VIII; Oršuš and Others, cited above, § 186; and Çam, cited above, § 70).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION READ IN CONJUNCTION WITH ARTICLE 14
70. The applicant also complained of adiscriminatory interference with his right to respect for his private life on the grounds that the potentialassistance by a third person would have had theeffectof making him dependenton that person anddepriving him of his privacy, in breach of Article 8 of the Convention read in conjunction with Article 14.
71. The Governmentsubmitted that there was no need to examine that complaintseparately.
72. TheCourtconsiders that the complaint is closely linked to that examinedpreviously and that it should therefore also be declared admissible.
However, having regardto the observations set out inparagraphs 69 to 72 and the finding made by the Court in paragraph 74 above, it agrees with the Government that no separateassessment is required of those matters.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
73. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
74. The applicant claimed 32,000 euros (EUR) in respect of the non-pecuniary damage which he alleged he had sustained owing to the circumstances, which in his view had amounted to a violation of his rights to educationand to respect for his private life.
75. The Governmentsubmitted that there was nocausallink between the violation found and thedamagealleged, and argued that the applicant had been unable todemonstrate that he had reallysuffered under the aforementionedcircumstances.
76. TheCourtconsiders that the applicant sustained, owing to the violation as found, non-pecuniary damage which cannot be redressed by the mere finding of a violation. However, it considers the amountclaimedexcessive (cf.Çam, cited above, § 74). Making its assessment on an equitable basis, as required by Article 41 of the Convention, theCourtawards the applicant the sum of EUR 10,000 under this head.
B. Costs and expenses
77. The applicant claimed 13,475 Turkish liras (TRY) in respect of legal fees. He presented an hourly breakdown showing forty-four hours of work performed in representing him in the present case, as well as a legal fees agreementsigned on 31 January 2012.
78. The Government did not contest that claim.
79. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers the amount claimed, approximately equivalent to EUR 2,952, reasonable and awards it to the applicant.
C. Default interest
80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares, unanimously,the application admissible as regards the complaint under Article 2 of Protocol No. 1 to the Convention, both alone and in conjunction with Article 14 of the Convention;
2. Declares, by a majority,the application admissible as regards the complaint under Article 8 of the Convention, both alone and in conjunction with Article 14 of the Convention;
3. Holds, by six votes to one, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1 to the Convention;
4. Holds, by six votes to one,that there is no need to examineseparately the merits of the complaints under Article 2 of Protocol No. 1 to the Convention and under Article 8 of the Convention taken in conjunction with Article 14 of the Convention;
5. Holds, by sixvotes to one,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable,in respect of pecuniary damage;
(ii) EUR 2,952 (two thousand nine hundred and fifty-two euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses, unanimously,the remainder of the applicant’s claim for just satisfaction.
Done in French, and notified in writing on 30 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Robert Spano
Registrar President
________________
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.
R.S.
H.B.
DISSENTING OPINION OFJUDGE LEMMENS
1. I regret that I cannot agree with my colleagues’conclusions.
Inshort, I consider that thepresentcase does not primarily concern reasonable accommodation. It follows that the applicant’s main complaint should have been assessed primarily under Article 2 ofProtocolNo. 1rather than under Article 14 of the Convention. Furthermore, in assessing the merits of the complaint, themajoritywould not appear to pay sufficientattention to certain facts in the case file, which lead me to a differentconclusion on the merits.
Finally, as regards the complaint under Article 8 of the Convention, in my view it should be declaredinadmissible.
Reasonable accommodationoraccessibility? Article 14 of the Convention orArticle 2 ofProtocolNo. 1 to the Convention?
2. Before theCourt, theapplicantcomplained of a discriminatoryinterference with his right to education. He alleged that the nationalauthorities had failed to take action – consisting in redevelopingthe building where he was to attend courses – such as to enable him to continue his studies after an accident which had left his lower limbs paralysed (seeparagraph 28 of the judgment). According to themajority, “the applicant’s allegation of discriminatory treatment on grounds of his locomotor disability is central to the complaint before it [the Court]” (seeparagraph 30 of the judgment). That is the reasonwhy themajorityheld that the case should be considered primarily under Article 14 of the Convention (seeparagraph 32 of the judgment). Later on, havingregardto its conclusion on that provision, it considered it unnecessary to examine separately the complaint under Article 2 ofProtocolNo. 1 taken alone(seeparagraph 75 of the judgment).
I take the view that the issue raised by the complaint is not (only) one of discrimination: it affects the very right to education, and in particular the right of access to education. What is central to the complaint, as the majority put it, is the applicant’sinability to gainaccessto the education offered, because of an alleged failure to adoptmeasuresto enable him to attend lectures and partial workshops. I therefore consider that the complaint should be assessed primarily under Article 2 ofProtocol No. 1.
3. The majority’sapproachhas consequencesin terms of thereasoning to be followed. Assessment under Article 14 of the Convention leads the majorityto consider the question of the State’s positiveobligations vis-à-vis thereasonable accommodation to be made, particularly in the educational sphere (seeparagraph 67 of the judgment). Reasoning based on Article 2 of Protocol No. 1 would shift the emphasis on to the accessibility of education.
4. Although they are linked, the concepts of reasonable accommodation and accessibilitycovertwo differentrealties.
The majorityrightly attach special importance to the United Nations Convention on the Rights of Persons with Disabilities (the “Disability Convention”). The EuropeanConvention on Human Rights should, as far as possible, beinterpreted in the light of the provisionsof the Disability Convention, which reflects aninternational consensus on the rights of persons with disabilities.
In the latter convention, reasonable accommodation andaccessibilityare governed by differentprovisions. Reasonable accommodation isdefined as“necessary and appropriate modification and adjustments … where needed in a particular case”, and a refusal to makereasonableaccommodation amounts to discrimination on grounds of disability (Article 2 of the Disability Convention). Accessibility, particularly in terms of access to the physicalenvironment, is a broader concept. It must be guaranteedin order to “enable persons with disabilities to live independently and participate fully in all aspects of life” (Article 9 § 1 of the same convention). As regardseducation, and inparticularhigher education, the States Parties must “ensure that persons with disabilities are able to access general tertiary education, vocational training, adult education and lifelong learning without discrimination and on an equal basis with others; “[t]o this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities” (Article 24 § 5 of the same convention).
Thedifferencebetween the two concepts is highlighted by the Committee on the Rights of Persons with Disabilities. That committee, in its General Comment no. 2 (2014) on Article 9 of the Disability Convention (accessibility)adopted on 11 April 2014, analyses that matter at length, emphasising the various legal ramifications of the concepts:
“24. A clear distinction should be drawn between the obligation to ensure access to all newly designed, built or produced objects, infrastructure, goods, products and services and the obligation to remove barriers and ensure access to the existing physical environment and existing transportation, information and communication, and services open to the general public. Another of the States parties’ general obligations is to ‘undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article 2 of the Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines’ (art. 4, para. 1 (f)). All new objects, infrastructure, facilities, goods, products and services have to be designed in a way that makes them fully accessible for persons with disabilities, in accordance with the principles of universal design. States parties are obliged to ensure that persons with disabilities have access to the existing physical environment, transportation, information and communication and services open to the general public. However, as this obligation is to be implemented gradually, States parties should establish definite time frames and allocate adequate resources for the removal of existing barriers. Furthermore, States parties should clearly prescribe the duties of the different authorities (including regional and local authorities) and entities (including private entities) that should be carried out in order to ensure accessibility. States parties should also prescribe effective monitoring mechanisms to ensure accessibility and monitor sanctions against anyone who fails to implement accessibility standards.
25. Accessibility is related to groups, whereas reasonable accommodation is related to individuals. This means that the duty to provide accessibility is an ex ante duty. States parties therefore have the duty to provide accessibility before receiving an individual request to enter or use a place or service. States parties need to set accessibility standards, which must be adopted in consultation with organizations of persons with disabilities, and they need to be specified for service-providers, builders and other relevant stakeholders. Accessibility standards must be broad and standardized. In the case of individuals who have rare impairments that were not taken into account when the accessibility standards were developed or who do not use the modes, methods or means offered to achieve accessibility (not reading Braille, for example), even the application of accessibility standards may not be sufficient to ensure them access. In such cases, reasonable accommodation may apply. In accordance with the Convention, States parties are not allowed to use austerity measures as an excuse to avoid ensuring gradual accessibility for persons with disabilities. The obligation to implement accessibility is unconditional, i.e. the entity obliged to provide accessibility may not excuse the omission to do so by referring to the burden of providing access for persons with disabilities. The duty of reasonable accommodation, contrarily, exists only if implementation constitutes no undue burden on the entity.
26. The duty to provide reasonable accommodation is an ex nunc duty, which means that it is enforceable from the moment an individual with an impairment needs it in a given situation, for example, workplace or school, in order to enjoy her or his rights on an equal basis in a particular context. Here, accessibility standards can be an indicator, but may not be taken as prescriptive. Reasonable accommodation can be used as a means of ensuring accessibility for an individual with a disability in a particular situation. Reasonable accommodation seeks to achieve individual justice in the sense that non-discrimination or equality is assured, taking the dignity, autonomy and choices of the individual into account. Thus, a person with a rare impairment might ask for accommodation that falls outside the scope of any accessibility standard” (CRPD/C/GC/2).
TheCommittee on the Rights of Persons with Disabilities reiterated this distinctionin its GeneralComment No. 4 (2016) on the right toinclusive education, adopted on 26 August2016:
“The Committee reiterates the distinction between the general accessibility duty and the obligation to provide reasonable accommodation. Accessibility benefits groups of the population and is based on a set of standards that are implemented gradually. Disproportionality or undue burden cannot be claimed to defend the failure to provide accessibility. Reasonable accommodation relates to an individual and is complementary to the accessibility duty. An individual can legitimately request reasonable accommodation measures even if the State party has fulfilled its accessibility duty” (CRPD/C/GC/4).
It is quite possible that not every position adopted by theCommittee on the Rights of Persons with Disabilities concerning the Disability Convention applies, as such, to the European Convention on Human Rights.For instance, I do not think that our Convention can beinterpreted asimposing an“unconditional”obligation to ensure accessibility without considering the fair balance betweenindividual rights andgeneralinterestscharacterising the whole Convention. On that point, theDisability Convention expands the obligations which States accept on becoming Parties to theEuropean Convention onHuman Rights.
5. However, the essentialpoint is that accessibilitybenefits allpersonswith disabilities, whereas reasonable accommodation concerns a specific individual in a specific situation. A State must first of all honour its generalobligation to ensure accessibility; subsequently it may be required to makereasonableaccommodation inindividual cases.
In the instant case, however the applicant complained of the absence of facilities liable to “be useful not only for himself but also for other persons with disabilities in the future” (seeparagraph 48 of the judgment). What he claims to have requested is not (reasonable) accommodation in view of hisspecific situation, but, moregenerally, (architectural) adaptation which wouldrender the building in question accessible to all studentswith locomotor disabilities.
The majoritymake several references to the right ofaccessto education and the accessibilityof the buildings in which education is provided. However, they broach the applicant’s complaint from the angle of Article 14 of the Convention, andreferto the provisions of the Disability Convention laying down that denial ofreasonableaccommodation amounts to discrimination (seeparagraph 67 of the judgment). In my view, by doing so the majorityhavereduced the scope of the applicant’s complaint.At the same time, Ifeel that they havealso misread the philosophyof the lawconcerningpersons with disabilities.
As stated above, the complaint should first of all have been assessed under Article 2 of ProtocolNo. 1 (accessibility), and then, ifnecessary, under Article 14 of the Convention (reasonable accommodation).
Access toeducation (Article 2 ofProtocolNo. 1 to the Convention)
6. Access to educational institutions existing at any given time isan integral part of the right set forth in the first sentence of Article 2 ofProtocolNo. 1 (see Case“relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 7-8, §§ 3-4, Series A no. 6, andCatan and Others v. theRepublic of Moldova andRussia [GC], nos. 43370/04 and 2 others, § 137, ECHR 2012). The right ofaccesstoeducation imposes an obligation on States to ensure that the buildings in which classes are given are accessible to all, therefore including persons with disabilities.
This obligation has applied to Turkeysince the entry into force of ProtocolNo. 1 in respect of that country, that is to say since 1954. Nonetheless, theCourtdoes not have to consider in abstractowhether Turkey is in compliance with theobligation. In the presentcase, the only question arising is whether Turkeyfulfilled its obligation vis-à-vis the applicant. The building in respect of which he submitted his request to the universityauthorities was built in 1988. The applicant’s complaint therefore relates to anexisting building.
7. As stated by the Committee on the Rights of Persons with Disabilities, the obligationon States toguaranteeaccessby persons with disabilities to thephysicalenvironment is, whereexistingbuildings are concerned, an obligation which must be honoured gradually. In order to achieve the desired result, States mustsetprecise deadlines and earmarkadequateresourcesfor theremoval ofexisting obstacles (GeneralComment No.2 (2014), § 24, quoted in paragraph 4 above).
Turkish law included provisionswhich, at the material time, laid down an obligation to bringexistingofficialbuildingsinto line withaccessibilityfor persons with disabilities within seven years as ofJuly 2005 (see section 2 [provisional] of Law no. 5378 of 1 July 2005 on persons with disabilities, quoted inparagraph 22 of the judgment). That time-limit was subsequently extended by one year, and then by two years for those buildings which were not yet in conformity (see footnote on page 3 of the judgment). However, thosedevelopmentslie outside the framework of the case before the Court.
8. Careful attention must be paid to the tenorof the applicant’s request to the university authorities and their reactions.
On 17 March 2007 the applicant asked thefaculty, apparently in fairly broad terms, to ensure that the university premises were adapted in such a way as to enable him to resume his studiesduring the 2007‑2008 academic year (seeparagraph 7 of the judgment; my italics). He was therefore leaving the university authorities very little time, although they were still within the legal time-limits for carrying out the requisite work. In his reply of 16 August 2007 the applicant referred, in particular, to section 15 of Law no. 5378 on persons with disabilities (see paragraph 9 of the judgment), which laid down the general obligation of access to education for persons with disabilities (for the text of that section, see Çam v. Turkey, no. 51500/08, § 36, 23 February 2016).
In theirreplies of 25 May and 10 September 2007, theuniversity authorities acknowledged that alterations were required to the buildings, but they also drew the applicant’sattention to thefact that carrying out the adaptation work could take some time (seeparagraphs 8 and 10 of the judgment).
Having been unable to accessthe building for the 2007-2008 academic year, the applicant lodged with theadministrativecourt an application for annulment and an action fordamages. He complained that the authorities had not removed the physical obstacles which he submitted had impeded the exerciseof his right to education (seeparagraph 11 of the judgment). In that connection, let me emphasise that that appeal still concerned theaccessibilityof the building during the 2007‑2008 academic year: the accessibilityof the building during the ensuing academic years could not have been covered by the appeal, because it only concerned theuniversity authorities’ replies to the applicant’s requests.
Theadministrativecourt dismissed the applicant’s appeal byjudgmentof 9 April 2010. The court held that theuniversitycould not be reproached with failing to observe the technical guidelines on buildingaccessibility, as they had been enacted after the construction of the building in issue. As regards the adaptation of that existing building, the court noted that the authorities hadinformed the applicant that architectural measures would beadopted in accordance with the available budget (seeparagraph 16 of the judgment). Inshort, the court held that in omitting to carry out the redevelopment work on the building in question before the beginning of the 2007-2008 academic year, the universityhad not failed to honour its obligations.
9. Themajorityconsider that it has not been demonstrated that the domestic authorities, inparticularthe university andjudicial authorities, reacted with the requisite diligence (seeparagraph 74 of the judgment).
I do not agree. We do not know what measuresthe applicantrequested. It would appear thatit was only before the Courtthat he provided details of the kind of redevelopment work he considered necessary (seeparagraph 48 of the judgment). Onthe other hand, the applicant’s request to theuniversity authorities was apparently couched in very broad terms, and was understood by the latter and theadministrativecourt as necessitating redevelopment work on thedoors to the building, as well as more extensive works inside the latter.
Can it be said that in failing to carry out the redevelopment work immediately, in particular by omittingimmediately to secure the requisite funding, thecompetentauthoritiesfailed to honour their positive obligation under Article 2 ofProtocolNo. 1? I consider that we have insufficient information at our disposal to reach such a conclusion. The existence and scope of apositive obligation in any given situation depend on the requisite fair balance to be struck between the competinginterestsof theindividual in question andof societyas a whole (seeparagraph 72 of the judgment, which, strangely enough, mentionsa principle which applies in thecontextof Article 2 ofProtocolNo. 1, and not under Article 14 of the Convention). In the instant case, thecompetentauthoritieshad undertaken to carry out the necessary work in accordance with the availablebudget, and the law required them to do so within a very specific time-limit. That being the case, how can it be claimedthat a few months after the applicant’s request, thoseauthoritieswere in a situation of flouting the latter’s rights?
10. Theuniversity authorities did not confine themselves to making commitments for the future. In order to enable the applicant to continue his studies immediately, thefacultyassured him that it would provide him with assistance as far as possible (seeparagraph 8 of the judgment). The administration was more specific, proposing the help of a support person (seeparagraph 10 of the judgment). The applicant did not react well to that proposal, and laterexplained that it pointed to a lack of understanding of his personalsituation, thataccepting it would have placed him in a situation ofdependency on a third person, and that the implementation of such a proposal would have led to a risk of his falling in the staircases(memorialinreplybefore theadministrative court; seeparagraph 13 of the judgment).
The proposal by the administrationmight indeed not have been very appropriate. However, was it its last offer? The applicant could have hadre-contacted that office to explain why the proposal did not suit him. There is nothing to suggest that the administration would not then have sought another immediate solution. However, the applicant preferred to respond by bringing legal proceedings. It is therefore understandable that the defence pleadings submitted by the administration accused the applicant of acting in bad faith: at that time the administration still considered that the provision of a support person was an appropriate proposal (seeparagraph 12 of the judgment). The factthat it was still of that opinion shows that the applicant had not re-contacted it toexplain that its offerwas notsufficient, or even that it was unacceptable. Only in his memorialinreply did the applicant state why he had notaccepted the proposal (seeparagraph 13 of the judgment).
11. Themajorityaccuse the university andjudicialauthorities of having failed toidentify the applicant’s real needs and find solutions capable of meeting those needs (seeparagraphs 71 and 73 of the judgment).
Having regard to thecourse of events at the national level, I consider this criticism unjustified. The contents of the case file would suggest to me that the university authorities were determined to enable the applicant to continue his studies, even though they saw no possibility of performing the requisite redevelopment work in the immediate future. The possibility of specific alterations for the applicant (“reasonable accommodation”,within the meaning of the DisabilityConvention) was there, but the applicant seems to have presented theuniversityauthorities with afait accompli by breaking off discussions with them and bringing legal proceedings. In my view, one of the reasons why there was no proper assessment of the applicant’s needs and of theconsequencesof the proposed assistance by a “support person” (seeparagraph 71 of the judgment) was the attitude adopted by the applicant.
12. In conclusion, while it is regrettable that the applicant was unable to continue hisstudiesduring the 2007-2008 academic year because of his lack ofaccessto the courses administered in the building at issue, I cannotconcludethat the respondent State failed to honour its obligations under Article 2 ofProtocol No. 1.
Denial ofreasonableaccommodation (Article 14 of the Convention)
13. Given that I find no violation of Article 2 ofProtocolNo. 1,I must furtherexplain why I did not vote for afinding of a violation of Article 14 of the Convention read in conjunction with Article 2 ofProtocol No. 1.
The question whether Article 14 was breached in the instant case means asking whether reasonable accommodation was denied, having regardto the specific situation of the applicant.
For the samereasonsas I gave in my arguments under Article 2 ofProtocolNo. 1, and in particularfor the reasonsconcerning thespecific proposal made to the applicant and hisreactionto that proposal (see paragraph 11 above),I cannot find that there was a violation of Article 14in the present case.
I should stress that if the applicant had continued discussions with theuniversityauthoritiesand if they had then shown little or no willingness to seek other solutions, the situation might have been very different. I cannot, however, speculate on that point.
Proposed assistance by a support person (Article 8 of the Convention, read separately and in conjunction with Article 14)
14. The applicant further complained of adiscriminatory interference with his right to respect for his private life on the grounds that the possible assistance of a third person would have had theeffectofrendering himdependenton that person and ofdepriving him ofhis privacy (seeparagraph 76 of the judgment).
Themajorityconsider this complaint admissible,addingthat it is unnecessary to examine itseparately on the merits (see paragraph 78 of thejudgment).
15. The subject matter of the complaint is an offer which, moreover, was made in order to help the applicant, which was never implemented and which was rejected by the applicant. I regret that I cannot agree with the majority’s decision todeclarethat complaint admissible. In my view an applicant who complains of a mere intention on the part of a public authority, which intention was not put into practice, cannot claim to be the victimof a violation of his rights within the meaning of Article 34 of the Convention.
That complaint ought therefore to have beendeclared incompatible ratione personaewith the provisionsof the Convention within the meaning of Article 35 § 3 (a) thereof.
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[1]. Apart from paragraph (f), all the provisions of this article were amended under Law no. 6518 of 6 February 2014.
[2]. Amended under section 1 (69) (n) of Law no. 6462 of 25 April 2013. The word “invalids” was replaced by the term “persons with disabilities”.
[3]. Amended under section 34 of Law no. 6353 of 4 July 2012, extending this period to eight years. In 2014 a maximum additional period of two years was granted.
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