On
22 March 2016, the European Court of Human Rights delivered a significant judgment
in the case Guberina v. Croatia, concerning
the discriminatory application of legal provisions in the area of taxation. The
applicant in the case was the father of a severely disabled child, who used to
live on the third floor of an apartment building that was inaccessible, due to
lacking an elevator. Considering how difficult access to the building was, the
applicant and his family sold the flat and bought a house that was fully
accessible.
The
applicant requested to be exempted from paying the tax normally applicable to
the purchase of a new property. He relied on a legal provision in Croatian law
that granted such exemptions to those who bought a new property in
order to solve their “housing needs”, in the sense that they did not already
own a property with “basic infrastructure” and that “satisfied hygiene and
technical requirements.” The applicant argued that since his old flat was
inaccessible, it did not satisfy his family’s “housing needs” and that
accessibility was a feature of “basic infrastructure.” However, national
authorities and courts decided that the old flat possessed all basic
infrastructure features and summarily dismissed the applicant’s request,
without considering his son’s particular circumstances.
To
start with, the European Court of Human Rights addressed the question of
whether the applicant could claim discrimination based on his son’s disability.
The Court clarified, for the first time in its jurisprudence, that “the alleged discriminatory treatment of the
applicant on account of the disability of his child, with whom he has close
personal links and for whom he provides care, is a form of disability based
discrimination covered by Article 14 of the Convention.”
The Court agreed with the applicant in that
accessibility was an element of basic infrastructure. In doing so, it highlighted
the importance of accessibility to people with disabilities as a key to
unlocking access to other fundamental rights:
“[lack
of accessibility] severely impaired [the applicant’s] son’s mobility and
consequently threatened his personal development and the ability to reach his
maximum potential, making it extremely difficult for him to fully participate
in the community and children’s educative, cultural and social activities. The
absence of a lift must have impeded the quality of living of the applicant’s
family and in particular his son to a similar extent that an able-bodied person
would experience by, for example, having a flat on the third floor of a
residential building without appropriate access to it or by having an impaired
access to the relevant public utilities.”
The Court held that the authorities interpreted the
meaning of “basic infrastructure" too restrictively, failing to take into
account the specific needs of the applicant and his family. This was all the
more so as Croatia was a party to the Convention on the Rights of Persons with
Disabilities (CRPD), and therefore Croatian authorities were under an
obligation to take into consideration its principles, including “reasonable
accommodation, accessibility and non-discrimination against persons with
disabilities with regard to their full and equal participation in all aspects
of social life.” The Court concluded that there was a breach of Article 14 of
the European Convention (prohibition of discrimination) together with Article 1
of its Protocol 1 (right to property).
The Court’s
robust approach in Guberina is
remarkable, considering its generally conservative position in relation to
disability, as well as the fact that housing and taxation are generally seen as
areas of privileged State competence. This is the first case in which the Court
has affirmed the importance of accessibility in the lives of persons with
disabilities, leading to a finding of a breach of the Convention. This is also
one of the very few judgments containing a fully-fledged argumentation under
Art. 14 of the Convention prohibiting discrimination, introducing concepts such
as ‘discrimination by association’ and ‘indirect discrimination’ for the first
time in a disability context. Finally,
the Court’s willingness to rely on the CRPD in order to interpret the States’
obligations under the European Convention is noteworthy. The message that this
case sends is that state institutions should actively consider the implications
of seemingly neutral legal provisions on the lives of people with disabilities
and make the necessary changes accordingly, in order to ensure their social
inclusion and avoid discrimination.
The
judgment is available at this link.
Vesna
Terhaj, a Croatian lawyer, and Constantin Cojocariu, a London-based Romanian
lawyer, represented the applicant in his case before the Strasbourg court.
