Last Updated on October 3, 2020 by LawEuro
Information Note on the Court’s case-law 214
January 2018
Enver Şahin v. Turkey – 23065/12
Judgment 30.1.2018 [Section II]
Article 14
Discrimination
Failure to conduct concrete individual assessment of disabled student’s needs regarding access to university premises: violation
Facts – During his studies the applicant had an accident which left his lower limbs paralysed. In 2007 he formally requested the university to carry out the necessary alterations and work to make the teaching premises accessible. The university replied that it did not have sufficient funds to carry out the work in the short term, and offered him the assistance of a support person. In 2010 the Administrative Court dismissed an appeal by the applicant, citing, among other grounds, the fact that the building in question had been constructed before the entry into force of the technical guidelines for the assistance of disabled persons, and the fact that architectural measures would be implemented “as funds allowed” (although no specific proposal had yet been made to that effect).
Law – Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1: Notwithstanding the authorities’ margin of appreciation, the Court was unable to accept that the issue of access to the university buildings could be left unresolved pending the availability of the full amount needed in order to complete all the major alteration works required by law. Where the fulfilment of an undertaking under the Convention called for positive measures on the part of the State, the latter could not simply remain passive.
Article 14 of the Convention had to be read in the light of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), under the terms of which discrimination on the basis of disability included all forms of discrimination, “including denial of reasonable accommodation”. This was defined as “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”.
While it was not the Court’s task to define such “reasonable accommodation” – which could take various forms, both physical and non-physical – the national authorities nevertheless had to be particularly attentive in the choices they made in this sphere, in view of the particular vulnerability of the persons affected.
It was true that the university had not rejected the applicant’s requests outright, but had offered him the assistance of a support person. However, although the international-law instruments recognised the provision of forms of human assistance among the measures to be considered, the offer made by the university did not come into that category, as there was nothing in the case file to demonstrate that it had been preceded by an assessment of the applicant’s actual needs and an honest appraisal of the potential impact on his safety, dignity and independence. Even though the applicant had not been adversely affected in this way, the authorities had disregarded the paramount importance of affording persons with a disability the possibility to live independently and fully develop their sense of dignity and self-worth. These concepts were at the heart of the CRPD and the Council of Europe recommendations, and dignity and personal autonomy also occupied an important position in the Court’s case-law, particularly concerning Article 8 of the Convention, with which Article 2 of Protocol No. 1 had some affinity.
In also remaining silent on these points, the Administrative Court had given insufficient consideration to the fair balance to be struck between the applicant’s interests and any competing interests.
Conclusion: violation (six votes to one).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
(See also Çam v. Turkey, 51500/08, 23 February 2016, Information Note 193; and the Factsheet on Persons with disabilities and the ECHR)
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